THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
th
DATED : 24 April, 2024
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SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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WP(C) No.21 of 2020
Petitioner : Kamal Das Rai
versus
Respondents : State of Sikkim and Others
Application under Article 226 of the Constitution of India
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Appearance
Ms. Mon Maya Subba, Advocate for the Petitioner.
Mr. Thinlay Dorjee Bhutia, Government Advocate for the
Respondents No.1.
None present for the Respondents No.2 and No.3.
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J U D G M E N T
Meenakshi Madan Rai, J.
1. The festering resentment of the Petitioner arises from
the perception that he was treated differently from the
Respondents No.2 and 3, in terms of the higher scale of pay
granted to them although he had appeared for the same interview
with them, for posts carrying the same scale of pay, in the year
1991. That, in the year 2017, to his consternation he discovered
that the Respondents No.2 and 3 were drawing higher salary, than
him, hence the grievances as detailed in the petition with the
reliefs sought.
(i) The Petitioner s case is that the office of the Secretary,
’
Printing and Stationary Department, Government of Sikkim, the
Respondent No.1, in the year 1991 was set to modernize with new
machinery and equipment, for which, requisite manpower for
WP(C) No.21 of 2020 2
Kamal Das Rai vs. State of Sikkim and Others
technical posts of machineman, cameraman and platemaking man
were to be recruited.
2. On 21-07-1991, the Petitioner, the Respondents No.2
and 3 along with other persons comprising a total of thirty-three
candidates, with educational qualification of Class X pass, appeared
for the interview so conducted. The Petitioner appeared fourth in
the merit list for the posts detailed above and was selected to the
post of machineman. The post of machineman carried a monthly
salary of 1,030-1,680, -25-1230-EB-
₹ in the pay scale of ₹ 1,030
30-1680, equivalent according to him, to the salary and pay scale
of cameraman and platemaking man. Vide Office Order dated 19-
08-1991 issued by the Respondent No.1, the Petitioner was
appointed as machineman and by a similar order of the same date
the Respondent No.2 was appointed as cameraman.
(i) Pertinently it may be noted that initially there were two
Petitioners in the instant matter. Petitioner No.2 withdrew from
the proceedings as reflected in the Order of this Court, dated 08-
06-2022, hence only the Petitioner No.1 has pursued the matter.
(ii) It is further 27-05-2017,
the Petitioner’s case that on
the
Bhim Chettri, the Petitioner’s friend filed an application under
Right to Information Act, 2005 (RTI), seeking information
regarding the scale of pay of the Respondents No.2 and 3 from the
office of the Respondent No.1. The information sought by him was
denied vide response, dated 22-06-2017. On appeal to the
Appellate Authority, on 17-07-2017 against the said order,
necessary documents were furnished to him on 17-08-2017,
wherein the Petitioner came to learn that the Respondents No.2
-1950 per
and 3 were drawing a higher scale of pay at ₹ 1,200
WP(C) No.21 of 2020 3
Kamal Das Rai vs. State of Sikkim and Others
month, from the date of their joining service as against the
Petitioner, -1,680 per month. The
who was only granted ₹ 1,030
Petitioner then made various verbal requests and representations
to the Respondent No.1 to place him in the pay scale at par with
the Respondents No.2 and 3, to no avail. The Petitioner also learnt
that the Respondent No.2 herein had in the year 1997 filed a writ
petition before this Court, being WP(C) No.32 of 1997, Sashi Kumar
Rai vs. State of Sikkim, seeking the pay scale of ₹ 1,200 -1950
-1,680 granted to him. The Petitioner then
instead of ₹ 1,030
sought for the entire records of the Writ Petition, which were made
available to him by the Registry of this Court on 06-08-2019. The
Writ Petition, as per the records, was disposed of as infructuous on
17-09-1998. That, in the counter affidavit to the WP(C) No.32 of
1997, it was categorically admitted, on oath, by the State-
Respondent that all the persons who were appointed by the
Respondent No.1, including the Petitioner and the Respondents
No.2 and 3 were appointed without advertising the posts, on
uniform scale of pay of 1,030-1680. Thereafter, the Petitioner
₹
again approached the Respondent No.1 on 08-08-2019 for
consideration of grant of equal pay with the Respondents No.2 and
3, which they again failed to consider. That, the nature of duties
discharged by the Petitioner and the Respondents No.2 and 3, as
well as the educational qualification prescribed for the posts, being
Class X pass, are similar, nevertheless the Petitioner has wrongfully
been denied the same pay scale. It is claimed that the denial of
equal pay for equal work is against the fundamental rights of the
Petitioner which is enshrined in Articles 14, 16, 39(d) and 43 of the
WP(C) No.21 of 2020 4
Kamal Das Rai vs. State of Sikkim and Others
Constitution of India. Hence, the Petitioner inter alia seeks the
following reliefs:
“I ..............................................………………………
II. To kindly declare that the petitioners has not been
treated equally (sic.) with Shri Shasi Kumar Rai and
Shri Pull Man Tamang (Respondent No.2 and 3).
III. To kindly direct the Respondent No.1 to enhance the
petitioners Pay Scale at par with Respondent No.2
and 3, from the date of joining.
IV. To kindly direct Respondent No.1 to give all the
service benefits to the petitioners if their scale is
revised at par with Respondent No.2 and 3, from the
date of joining.
V. ..............................................……………………..”
3. The Respondent No.1 filed their Counter Affidavit to
which Rejoinder was filed by the Petitioner. An additional Affidavit
came to be filed by the Respondent No.1 averring that the
Petitioner on his application dated 09-08-2022, seeking promotion
was vide Order of the Respondent No.1, dated 24-01-2023,
promoted to the post of senior machineman in the Level 10 of the
Pay Matrix.
4. The Respondents No.2 and 3 opted to remain
unrepresented throughout the proceedings although Notice was
served on them.
5. Learned Counsel for the Petitioner while reiterating the
facts as stated in the writ petition, contended that the Petitioner
has been treated unjustly and his fundamental rights trampled
upon. The appointment of the Petitioner and the Respondents No.2
and 3 was sans advertisement. That, the memorandum offering
appointment to the Respondent No.2 dated 16-08-1991 was for the
post of cameraman, with monthly pay reflected therein as -
₹ 1,030
1680 -25-1230-EB-30-1680. His Office
in the pay scale of ₹ 1,030
Order, dated 19-08-1991 is also reflective of the same position as
WP(C) No.21 of 2020 5
Kamal Das Rai vs. State of Sikkim and Others
above. Similarly, the Petitioner was appointed as machineman and
his monthly pay as per his Office Order also of 19-08-1991 was in
the same scale of pay as Respondent No.2. The Respondents No.2
and 3 although lacking the requisite qualification for the post of
cameraman were appointed after relaxing the eligibility criteria and
consequently on a lower scale of pay based on a Government
decision. That, the pay scales were specified in the
communication, dated 16-08-1991 and 19-08-1991 (supra). That,
the Note Sheet of the Accounts-cum-Administrative Officer, dated
19-09-1996, filed by the Petitioner, reflects that the Works
Manager, who was also a member of the Departmental
Promotion/Appointment committee, had in his notes submitted that
the posts of machineman, cameraman and platemaking man in the
Offset Printing Press were equivalent. As per the technical
authorities all the above three posts required the same degree of
skill, labour, qualification and nature of duties, which was the
reason for the DPC to have conducted a common examination for
Class X passed candidates for the said posts, in the pay scale of
₹
1,030-1680. The note categorically indicates that the department
had not invited applications for the posts of cameraman in the pay
scale of 1,200-1950, nor had the Respondent No.2 applied
₹
specifically for the said post. That, the note also indicated that the
Respondents No.2 and 3 were not appointed as cameraman on the
basis of merit as Krishna Tamang whose name appears first in the
merit list was appointed in the post of platemaking man. In other
words, the posts were allotted at random and not on merit. It was
urged that the decision of the Respondent No.1 in enhancing the
scale of the Respondent No.2 in such circumstances is arbitrary and
WP(C) No.21 of 2020 6
Kamal Das Rai vs. State of Sikkim and Others
without basis. Hence, the reliefs sought by the Petitioner be
granted.
6. Learned Government Advocate while opposing the
contentions raised in the writ petition and the arguments advanced
by Learned Counsel for the Petitioner, sought to clarify in the first
instance that, the Petitioner on 09-08-2022 during the pendency of
this writ petition had submitted an application to the Respondent
No.1, requesting for promotion to the post of senior machineman,
by upgradation from the present post of junior machineman held
by him. The department on due consideration and on the
recommendation of the Departmental Promotion Committee (DPC),
vide order dated 24-01-2023, promoted the Petitioner to the post
of senior machineman, in Level 10 of the Pay Matrix, which is
equivalent to that of the Respondent No.2. Pursuant to the order,
the Petitioner joined as senior machineman from the forenoon of
24-01-2023. That, once the relief claimed by him has been
granted by the Respondent No.1, he cannot approbate and
reprobate by first accepting the promotion thereafter, continue to
pursue the reliefs in this Writ Petition having waived his right by
acceptance of the promotion. On this count reliance was placed on
1
. Learned
Union of India and Others vs. N. Murugesan and Others
Government Advocate admitted that after the Respondent No.2
approached this Court in WP(C) No.32 of 1997 as the Petitioner, he
was granted the higher pay -30-1530-EB-35-1950,
scale of ₹ 1,200
vide Office Order bearing No.364/Ptg. & Sty./98-99, dated 09-09-
1998,. That, in fact on questions raised by the High Court during
the pendency of the Writ Petition (supra), the State Government
1
(2022) 2 SCC 25
WP(C) No.21 of 2020 7
Kamal Das Rai vs. State of Sikkim and Others
had conceded that in the Cabinet Memo the scale of pay of
cameraman (Respondent No.2 herein) -1950
was shown as ₹ 1,200
and that the error regarding the scale actually being drawn was
discovered at a later stage. Subsequent to such realization, the
order dated 09-09-1998 was issued to the Respondents No.2 and 3
in terms of the Notification of 03-06-1991. That, to the contrary
the Petitioner has approached this Court with his grievances only in
the year 2020, much after the relief was granted to the
Respondent No.2 in 1998 with no reasons accounting for the delay.
That, his inaction indicates that he is guilty of delay and laches. It
was also urged that higher pay scale cannot be granted
retrospectively to the Petitioner, for which strength was drawn
from
Commissioner of Income Tax (Central)-I, New Delhi vs. Vatika
2
. Learned Government Advocate
Township Private Limited
emphasized that the accuracy and dexterity of the jobs of
cameraman and machineman vary and the volume of work even if
deemed equal cannot be the sole criteria for grant of equal pay.
There are qualitative differences with regard to responsibility of the
two posts. The attention of this Court was invited to the
Notification bearing No.10/Gen/Estt., dated 03-06-1991 which
clarifies the various scale of pay of machineman at Sl. No.3 as ₹
1030-1680 and of cameraman at Sl. No.5 as 1200-1950. The
₹
Petitioner was issued an offer of appointment for the post of
machineman which he could have protested as per the terms
delineated in the memorandum of offer of appointment. Having
chosen to accept the offer of appointment with all its terms and
conditions, including the scale of pay, he is estopped from claiming
2
(2015) 1 SCC 1
WP(C) No.21 of 2020 8
Kamal Das Rai vs. State of Sikkim and Others
a higher scale of pay that too retrospectively. That, the Petition
lacking in merit, be dismissed.
7. After having heard the Learned Counsel for the parties
at length and having perused the entire records placed before this
Court, the question that requires determination is whether the
Petitioner is entitled to salary in the pay scale -30-1530-
of ₹ 1,200
EB-35-1950 from the date of his joining in the post of machineman
in terms of his Office Order bearing No._____(illegible)/Ptg. &
Sty./, dated 19-08-1991.
8. The facts of the case having already been discussed
above, for brevity, are not being reiterated. Notification
No.10/Gen/Estt., dated 03-06-1991, which is relevant for the
present purposes is reproduced hereinbelow;
“NOTIFICATION
No.10/Gen/Estt.
Dated Gangtok, the 3rd June, 1991.
The Governor of Sikkim is pleased to sanction the
creation of the following posts in the Printing and
Stationary Department with immediate effect:-
(A) Offset Unit
Sl. Name of the Pay Scale No. of Posts
No. Post Sanctioned
1. Works Ma nager Rs.1820-3200 1 (One)
2. Senior Machineman Rs.1320-2040 1 (One)
3. Machineman Rs.1030-1680 2 (Two)
4. Senior Cameraman Rs.1320-2040 1 (One)
5. Cameraman Rs.1200-1950 2 (Two)
6. Senior Plate makingman Rs.1320-2040 1 (One)
7. Plate makingman Rs.1030-1680 1 (One)
8. Design & Layout man Rs.1320-2040 1 (One)
9. D.T.P Operator Rs.1320-2040 3 (Three)
10. Typist Rs.975-1550 1 (One)
(B) Letterpress Section
1. Junior Engineer (Elec.) Rs.1410-2300 1 (One)
2. Compositor Rs.840-1200 4 (Four)
3. Machineman Rs.840-1200 6 (Six)
4. Binder Rs.840-1200 7 (Seven)
(C) General
1. Gardener Rs.800-1060 1 (One)
The expenditure shall be debitable to the Budget
Head 2058” Ptg. &Sty. (103) (1) 1, 2, & 3 (Plan).
By Order,
D. K. Pradhan
Deputy Secretary,
Establishment Department
”
(emphasis supplied)
WP(C) No.21 of 2020 9
Kamal Das Rai vs. State of Sikkim and Others
9. As per the notification, there were inter alia two
sanctioned posts of machineman, two sanctioned posts of
cameraman along with one sanctioned post of platemaking man.
The fact that the Petitioner along with the Respondent No.2 applied
for the posts on 16-04-1991 is revelatory of the fact that their
applications were submitted post the issuance of the notification
and thereby with implicit knowledge of the pay scales notified. It
may be true that when the applicants had applied for the posts, no
specific post was mentioned by them. Nevertheless, once the
selection process was completed and the memorandum of offer of
appointment issued to each of them by the Respondent No.1,
followed by the individual order of appointment, the posts to which
the Petitioner and the Respondents No.2 and 3 were appointed
were categorically spelt out therein and this fact cannot be
overlooked. The memorandum of the offer of appointment of the
Respondent No.2 bearing no.60/Ptg. & Sty., dated 16-08-1991,
offered him appointment in a temporary capacity to the post of
cameraman in the Printing and Stationary Department,
Government of Sikkim, -1680 in the
on a monthly pay of ₹ 1,030
pay scale of 1030-25-1230-EB-30-1680 (Non-Gazetted) with
₹
effect from the date of joining. The terms of appointment have
been delineated thereunder. The office order which followed was
issued on 19-08-1991 appointed the Respondent No.2 as
cameraman in the relevant department on the pay scale of 1030-
₹
25-1230-EB-30-1680. The Petitioner has not filed his memorandum
of offer of appointment for reasons best known to him, but
apparently he made no protest when his Office Order dated 19-08-
WP(C) No.21 of 2020 10
Kamal Das Rai vs. State of Sikkim and Others
1991 appointing him as machineman on a monthly pay of 1030-
₹
1680, in 30-25-1230-EB-30-1680.
the pay scale ₹ 10
(i) In 1997, the Respondent No.2 being aggrieved by the
scale of pay (supra) -
granted to him as against the pay of ₹ 1,200
1950/- indicated in the Notification of 1991, was before this Court
in a Writ Petition venting his grievances in which the Petitioner had
no part nor did he seek impleadment as a party. During the course
of the proceedings in the Writ Petition supra, the Court on 17-08-
1998 directed the State-Respondents to submit their reply to the
following queries raised by this Court viz.;
“1. The decision of the State Govt. for creation of the post
of the Cameraman in the scale of Rs.1,200-1950 vide
Annexure P-1 etc. against which the petitioner was
appointed.
2. The proposals and notes in the relevant files for creation
of the aforesaid post carrying the scale of Rs.1,200-1950
notified vide Annexure P-1.
3. If any error crept in while preparing the Cabinet Memo,
the correct position regarding scale against the post of
Cameraman be indicated in the notes and discussions in
the file proposing creation of the post of Cameraman prior
to issuance of Annexure P-1.
4. If the State Govt. made any change subsequent to the
decision for creation of the post of Cameraman in the said
scale at lower scale prior to the appointment of the
petitioner, such notes and decisions of the Cabinet be made
available.”
10. In response therefore, the Learned Assistant
Government Advocate for the State- Respondent, vide his petition
dated 27-08-1998, submitted the following information;
“3. That, in compliance to the aforesaid order dated
17.8.1998 the following informations are furnished:
(i) That with regard to the Query No.1, as to the
decision of the State Government for creation
of the post of cameraman in the scale of
Rs.1200-1950, it is humbly submitted that in
the Cabinet Memo, the scale of pay to be
given to the Cameraman has been shown as
Rs. 1200-1950 .
(ii) That, with regard to the Query No.2, as to
the proposal and notes in the relevant file for
creation of the post, it is humbly submitted
that the said records are not traceable.
However, in the Cabinet Memo, the scale of
pay to be paid to the Cameraman has been
shown as Rs. 1200-1950.
WP(C) No.21 of 2020 11
Kamal Das Rai vs. State of Sikkim and Others
(iii) That with regard to the Query No.3, as to the
error that may have crept in while preparing
the Cabinet Memo and the correct position
regarding the scale against the posts of
cameraman, it is humbly submitted that the
said error regarding scale of pay was
discovered at the latest stage as reflected in
the comprehensive note of the Accounts-
cum-Administrative Officer, which has been
annexed as Annexure-R6 to the Additional
Counter filed on behalf of the State
Respondent on 26.5.1998. ”
(emphasis supplied)
The note of the Accounts cum-Administrative Officer inter
–
alia referred to by the Learned Assistant Government Advocate
hereinabove reveals, on pain of repetition that, the Government
had approved the creation of thirty-three posts in the Printing and
Stationary Department which was notified vide Notification bearing
no.10/Gen/Estt., dated 03-06-1991 and duly published. The
candidates applied for the notified posts. After conducting the
interview, the Departmental Promotion Committee/Appointment
Committee recommended five persons for appointment which to
the appointment of the Petitioner and the Respondent No.2. It was
also stated that the department had not invited applications
specifically for appointment as cameraman,
in the pay scale of ₹
1,200-1950 nor had the Respondent No.2 applied so, for the post
and a common test was conducted for the three categories with a
uniform scale of pay of 1030-1680. The department had issued
₹
an offer of appointment and if the terms of appointment were
acceptable, the selected applicants were to report to the Joint
Director. The selected candidates accordingly completed the
formalities and joined their duties. The scale of pay of -
₹ 1,200
30-1530-EB-35-1950/- was sought only after three years by the
Respondents No.2 and 3 therefore there was no reason to grant
the claimed pay scale merely because it was published in the
WP(C) No.21 of 2020 12
Kamal Das Rai vs. State of Sikkim and Others
Government Gazette. This document was annexed with the
Government response to the queries (supra).
(i) On 28-08-1998, after the response of the Government
dated 27-08-1998 was filed before this Court, the matter was
taken up by the Court which recorded inter alia that the Director,
Printing and Stationary Department, Government of Sikkim had
addressed a letter to the Learned Counsel of the Petitioner
(Respondent No.2 herein), informing that the Department was
processing the case of the Petitioner for consideration and hence
time of ten days was granted for the purpose. On 17-09-1998, the
State-Respondent filed a copy of the office order, dated 09-09-
1998, by which the Petitioner (Respondent No.2 herein) was
deemed to have been appointed to the post of cameraman, in the
pre- -30-1530-EB-35-1950 from the date of
revised scale of ₹ 1200
his appointment i.e., 21-08-1991. The Respondent No.3 herein
was also granted the same relief vide the same Order of 09-09-
1998. The Petition was consequently dismissed as being
infructous.
11. What is evident from the entire proceedings reflected
hereinabove is that as the Notification of 03-06-1991 unequivocally
notified that the two sanctioned posts of cameraman carried the
pay scale of -30-1530-EB-35-1950, the grievance of the
₹ 1200
Respondent No.2 as Petitioner in WP(C) No.32 of 1997, Sashi Kumar
Rai vs. State of Sikkim before this Court seeking the scale as against
-1680 which was the scale being paid to him was not
₹ 1030
unjustified. The case of the Petitioner is distinguishable. The post
of machineman as per the Notification to which post he was
appointed, emphatically indicates the pay scale of 1030-25-1230-
₹
WP(C) No.21 of 2020 13
Kamal Das Rai vs. State of Sikkim and Others
EB-30-1680. The fact of a common interview for the three posts
does not necessarily translate into similar duties, which in any
event have not been delineated by the Petitioner before this Court,
for perusal and consideration.
12. Learned Counsel for the Petitioner was insistent upon
the principle of equal pay for equal work and to this end had drawn
strength from the decision in
Randhir Singh vs. Union of India and
3
and
Others Deb Narayan Shyam and Others vs. State of W.B. and
4
. The facts in the said matters are distinguishable from the
Others
facts herein. The decision in (supra) dealt with the
Randhir Singh
appointment of drivers and constable drivers. The Court concluded
that there cannot be the slightest doubt that the drivers in the
Delhi Police Force perform the same functions and duties as other
drivers in the service of the Delhi Administration and the Central
Government. That, it was an admitted position that the driver
constables of the Delhi Police Force perform no less arduous duties
than drivers in the departments. Therefore, there was no reason
for giving them a lower scale of pay than the other drivers. The
writ petition was allowed with a direction to the Respondents to fix
the scale of pay of the Petitioner and the driver constables of the
Delhi Police Force, on a par with that of the drivers of the Railway
Protection Force.
(i) In (supra) the questions involved
Deb Narayan Shyam
were; (i) whether the Amins and Surveyors discharge the same
duties or not; (ii) whether the Amins are entitled to the same pay
scale and (iii) what is the effect of various decisions of the High
Court of Calcutta treating Amins equivalent to Surveyors and
3
(1982) 1 SCC 618
4
(2005) 2 SCC 286
WP(C) No.21 of 2020 14
Kamal Das Rai vs. State of Sikkim and Others
allowing them the same scales of pay. The Supreme Court
observed that once it is found that the Amins and Surveyors
discharge different functions and their qualifications are not the
same, then there was no reason to give the Amins the same pay
scale.
13. The Petitioner in the instant matter has failed to
impress upon this Court as to how their duties are similar and
entail equivalent responsibilities. No data or other information has
been furnished by the Petitioner for this Court to examine. In the
absence of any specifics with regard to duties discharged by the
Petitioner and such duties being equivalent to those of cameraman
this Court cannot run to his defence based on the qualification
prescribed for the three posts being Class X pass and the fact that
they faced the same interview. This also leads to the question of
approbate and reprobate , waiver and delay and laches raised by
“ ”
the State-Respondent. To approbate and reprobate means to
“blow hot – blow cold”. The Supreme Court in Rajasthan State
Industrial Development and Investment Corporation and Another vs.
5
Diamond & Gem Development Corporation Limited and Another
observed that where one knowingly accepts the benefits of an
order, he is estopped from denying the binding effect of such an
order upon himself. In this context, the Petitioner having accepted
Level 10 of the Pay Matrix granted by the Respondent No.1, he
cannot seek further benefits by seeking retrospectivity of his scale
of pay, -30-
which according to him should be placed at ₹ 1200
1530-EB-35-1950.
5
(2013) 5 SCC 470
WP(C) No.21 of 2020 15
Kamal Das Rai vs. State of Sikkim and Others
14. Addressing the more important aspect of delay and
6
laches in , the
Government of W.B. vs. Tarun K. Roy and Others
Supreme Court was of the view that;
“34. The respondents furthermore are not even
entitled to any relief on the ground of gross delay and
laches on their part in filing the writ petition. The first two
writ petitions were filed in the year 1976 wherein the
respondents herein approached the High Court in 1992. In
between 1976 and 1992 not only two writ petitions had
been decided, but one way or the other, even the matter
had been considered by this Court in Debdas Kumar [
1991
].
Supp (1) SCC 138: 1991 SCC (L&S) 841: (1991) 17 ATC 261: 1991 AIR SCW 704
The plea of delay, which Mr Krishnamani states, should be
a ground for denying the relief to the other persons
similarly situated would operate against the respondents.
Furthermore, the other employees not being before this
Court although they are ventilating their grievances before
appropriate courts of law, no order should be passed which
would prejudice their cause. In such a situation, we are not
prepared to make any observation only for the purpose of
grant of some relief to the respondents to which they are
not legally entitled to so as to deprive others therefrom
who may be found to be entitled thereto by a court of law.”
(emphasis supplied)
15. In
State of Jammu and Kashmir vs. R. K. Zalpuri and
7
the Supreme Court while dwelling upon jurisdiction under
Others ,
Article 226 of the Constitution of India observed that the High
Court while exercising its jurisdiction under Article 226 is duty
bound inter alia to consider whether the person invoking the
jurisdiction is guilty of unexplained delay.
16. In
Assistant Excise Commissioner and Others vs. Issac
8
, it was held that;
Peter and Others
“26. ………………………………. Doctrine of fairness or the
duty to act fairly and reasonably is a doctrine developed in
the administrative law field to ensure the rule of law and to
prevent failure of justice where the action is administrative
in nature. Just as principles of natural justice ensure fair
decision where the function is quasi-judicial, the doctrine of
fairness is evolved to ensure fair action where the function
is administrative. But it can certainly not be invoked to
amend, alter or vary the express terms of the contract
between the parties………………………..”
17. Most recently in
Mrinmoy Maity vs. Chhanda Koley and
9
the Supreme Court reiterated as follows;
Others ,
6
(2004) 1 SCC 347
7
(2015) 15 SCC 602
8
(1994) 4 SCC 104
WP(C) No.21 of 2020 16
Kamal Das Rai vs. State of Sikkim and Others
“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 latches 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 latches, 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 latches on
the part of the applicant in approaching a writ court. ……..”
(emphasis supplied)
18. On the cornerstone of the principles enunciated
hereinabove it falls to reason that undoubtedly the Petitioner is
guilty of delay and laches apart from evidently not disclosing all
relevant facts to the Court. The allegation of his ignorance of the
Writ Petition supra filed by the Respondent No.2 in 1997, before
the High Court is the first point regarding the truth of the matter,
that needs to be mulled over, surprising as it is that he remained
ignorant of the developments in his office and amongst his
colleagues. Be that as it may, assuming that he was indeed
ignorant of the facts, he has failed to shed light or detail reasons
on why he failed to approach the Court earlier in time. The
Petitioner has not deemed it essential to delineate reasons for his
delay in approaching this Court. His friend allegedly lodged an RTI
application in the year 2017 seeking details of the pay scales of the
Petitioner’s colleagues but no reason whatsoever emanates on this
peculiar step taken by his friend seeking details of third persons
with no apparent basis, when he is not even an aggrieved party.
9
2024 SCC OnLine SC 551
WP(C) No.21 of 2020 17
Kamal Das Rai vs. State of Sikkim and Others
19. It requires no reiteration that the Court is to satisfy
itself as to whether the explanation offered is proper and
satisfactory for the delay in approaching the Court. I find that the
grounds put forth by the Petitioner, for the delay and for seeking
the reliefs, do not call for exercising the discretion of this Court to
alter the express terms of the Office Order, dated 19-08-1991,
issued to the Petitioner. The inaction of the Petitioner from 1991
has not been explained, in fact even the delay from 1997 has
merited no explanation from the Petitioner and it is beyond
comprehension as to why he approached the Court only in 2020
even after he learnt of the higher pay scales of the Respondents
No.2 and 3 in 2017 itself.
20. In the end result, in view of the foregoing elaborate
discussions, I am constrained to determine that the Petitioner is
not entitled to any of the reliefs claimed.
21. Petition stands dismissed and disposed of.
22. No orders as to costs.
( Meenakshi Madan Rai )
Judge
24-04-2024
Approved for reporting : Yes
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