Ananda Kumar Patel v. State of Odisha & Ors.

Mr. R.C. Mishra, Advocate For Opp. Parties : Mr. S.K. Samal, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- ---- Date of Hearing:24.04.2024 and Date of Judgment: 24.04.2024 ----------------------------------------------------------------------------- --- Biraja Prasanna Satapathy, J.

1. Heard Mr. R.C. Mishra, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate for the State.

2. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “It is therefore, prayed that this Hon’ble Court may graciously be pleased to issue rule NISI calling upon the opp. parties to show cause as to why the // 2 // petitioner shall not be engaged as “Gana Sikshyak” as a left out candidate on the basis of Resolution dated 16.02.2008 (Annexure-3) and Engagement order dated 07.02.2011 of Sulochana Nayak (Annexure-4, a similarly situated person who was engaged as Gana Sikshyak by the authorities in compliance to the order dated 07.04.2009 of this Hon’ble Court passed in W.P.(C) No.3317 of 2009) and if the Opp. Parties fail to show cause or show insufficient cause, make the rule absolute and issue a writ of mandamus directing the opp. parties to engage the petitioner as Gana Sikshyak as a left out the basis of Resolution dated candidate on 16.02.2008 (Annexure-3) and Engagement order dated 07.02.2011 of Sulochana Nayak (Annexure-4, a similarly situated person who engaged as Gana Sikshyak by the authority in compliance of the order dated 07.04.2009 of this Hon’ble Court passed in W.P.(C) No.3317 of 2009) and to grant all service and financial benefits to the petitioner within a stipulated time and may issue any other writ/writs, order/orders, direction/directions as to which this Hon’ble Court deem just and proper for ends of justice.”

3. It is contended that the petitioner while continuing as an Education Volunteer under EGS and AIS Scheme, the said scheme was closed in the year 2007. Thereafter, Govt.-O.P. No.1 vide its Resolution dated 16.02.2008 so issued under Annexure-3 though decided to engage such disengaged Education Volunteers as Gana Sikshyak under Sarva Shiksha Abhiyan, but the case of the petitioner was never considered.

3.1. Petitioner though filed series of representation to get the benefit of engagement as a Gana Sikshyak basing on Resolution under Annexure-3 dated // 3 //

16.02.2008, but as no action was taken, the present Writ Petition has been filed inter alia with the prayer as indicated hereinabove.

3.2. Learned counsel the Petitioner also contended that considering similar claim made by similarly situated Gana Sikshyak, this Court vide order dated 14.03.2024 in W.P.(C) No.5749 of 2024 directed the Collector of the concerned district to consider and take a decision on the claim of the petitioner therein. It is accordingly contended that the claim made before O.P. No.2 vide representation dtd.17.03.2023 under Annexure-5 be directed to be considered and disposed of.

4. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand contended that though there is no dispute that the petitioner was engaged as an Education Volunteer under EGS and AIS Scheme, but the said Scheme was closed in the month of November, 2007. Thereafter, Govt.-O.P. No.1 though took a decision to engage such disengaged Education Volunteers as Gana Sikshyak in terms of Resolution // 4 // dated 16.02.2008, but the petitioner at no point of time raised his claim to get the benefit and in the meantime more than 16 years have passed.

4.1. It is contended that because of such delay in approaching this Court the Writ Petition is not entertainable in view of the decision of the Hon’ble Apex Court in the case of Mrinmoy Maity –Vrs- Chhanda Koley and Others( in Civil Appeal No.5027 of 2024). Hon’ble Apex Court in Para-11 to 14 of the judgment has held as follows:- the appeal ought “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, 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 right but while exercising fundamental 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. This Court in the case of Tridip Kumar Dingal and others v. State of W.B and others., // 5 // (2009) 1 SCC 768 has held to the following effect: "56. We are unable to uphold 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. exercise refusing the Court at

57. If the petitioner wants to invoke jurisdiction of a writ court, he should the earliest reasonably opportunity. possible Inordinate delay in making the motion for a writ will indeed be a good ground 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. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , Durga Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC 185] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84]).

58. 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 the breach of depend upon what remedy fundamental right and // 6 // claimed are and when and how the delay arose."

12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corportion Ltd. and another v. K. Thangappan and another, (2006) 4 SCC 322 whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder: "6. 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 under Article 226 of the Constitution. 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. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has judicially and to be exercised reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329]. Sir Barnes had stated: "Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice // 7 // in taking the one course or the other, so far as it relates to the remedy."

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : AIR 1970 SC 470] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] 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 is not the petitioner and such delay part of satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the 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."

13. Reiterating the aspect of delay and latches would disentitle the discretionary relief being granted, this Court in the case of Chennai Metropolitan Water Supply & Sewerage Board and others v. T.T. 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 // 8 // without adequate simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, 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 inordinate delay would only invite disaster for the litigant who knocks at the court. Delay reflects the doors of 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."

14. Having regard to the afore-stated principles of law enunciated herein above, when we turn our attention to facts on hand, it would not detain us for too long for accepting the plea of the appellant in affirming the order of the Learned Single Judge and dismissing the writ petition on the ground of delay and latches. We say so for reasons more than one, firstly, it requires to be noticed that the writ petitioner was a rival applicant along with the appellant herein for grant of LPG distributorship and she along with the appellant herein, were found to be eligible and the appellant herein was held to be successful by virtue of draw of lots. This factual aspect would reflect that the writ petitioner was aware of all the developments including that of the allotment of distributorship having been made in favour of the appellant herein way back in 2014, yet did not challenge and only on acceptance of the alternate land offered by the appellant in March, 2017 and permitting him to construct the godown and the showroom. Same was challenged in the year 2017 and thereby the writ petitioner had allowed his right if at all if any to be drifted away or in other words acquiesced in the acts of the Corporation and as such on this short ground itself the appellant has to succeed. Secondly, another fact which has swayed in our mind to accept the plea of the appellant herein is that, undisputedly the appropriate government had the Oil Marketing Companies flexible and as such modification to the guidelines had been brought about on 15.04.2015 whereby the applicants were permitted to offer alternate land where the land initially offered by them was found deficient or not suitable or change of the land, subject to specifications as laid down in the need of permitting to be more // 9 // the advertisement being met. There being no stiff opposition or strong resistance to the alternate land offered by the appellant herein not being as per the specifications indicated in the advertisement, we see no reason to substitute the court’s view to that of the experts namely, the Corporation which has in its wisdom has exercised its discretion as is evident from the report filed in the form of affidavit by the territory manager (LPG)/ BPCL whereunder it has been stated: On "13. xxxxxxxxxxxxxxxxxxxxx to nonagricultural. In his application form the said Respondent no. 9 had provided the Land for godown at Plot No 3732, Khatian No LR 2585, 2586, 2587 JL No 34, Mouza Kolera, Jamalpur, Distt Burdwan admeasuring 33 decimal. The same was cleared based on Registered Lease Deed, which was found to have been genuine in all respects as confirmed by the ADSR Jamalpur.

16. The land offered by the successful candidate, namely the Respondent no.9 was found to be eligible by relying on the abovementioned clauses, which determine eligibility of the land based on the status of ownership. The fact that the said land was a "Barga" land is not a material condition on the basis of which the Respondent no. 9’s candidature could be cancelled.

24. Subsequently, FVC of the said newly offered land by the LOI holder, Respondent no. 9 was conducted and the same was found suitable for construction of LPG Godown. A letter being DGP:LPG OMP: Jamalpur dated 21.03.2017 was provided to the said LOI holder informing him that the alternate suitable and construct LPG Godown in the said alternate land has been approved. A copy of the said letter dated 21.03.2017 is annexed hereto and is marked as "R-5". land provided therefore his request

25. It is therefore submitted that the steps taken by the Respondent no. 3 in allowing the LOI holder, Respondent no. 9, to provide alternate land for construction of godown, have been in consonance. with the change in policies and no favoritism or nepotism, as suggested by the petitioner has been in play. // 10 //

32. It is further clarified that the FVC conducted on the original land offered by the Respondent no. 9 was found to be satisfactory on all counts, and only on the basis of this, his request for provision of alternate land wall accepted."

5. Having heard learned counsel for the parties, this Court finds that the petitioner though was engaged as an Education Volunteer but the said scheme was closed in the month of November, 2007. Govt.-O.P. No.1 though brought out a Resolution on

16.02.2008 under Annexure-3 and took a decision to engage such disengaged Education Volunteers as Gana Sikshyak under Sarva Shiksha Abhiyan, but no document has been annexed to the Writ Petition showing petitioner having taken any step to get the benefit till submitting representation on

17.03.2023 under Annexure-5. Petitioner as found from the record is approaching this Court for the first time after more than 16 years of the issuance of the Resolution under Annexure-3 to get the benefit of appointment as a Gana Sikshyak after making the represenation dated 17.03.2023 under Annexure-5. Placing reliance on the decision in the case of Mrinmoy Maity as cited (supra), this Court is not // 11 // inclined to pass similar order as passed in W.P.(C) No.5749 of 2024, as there is inordinate delay of 16 years in approaching this Court to get the benefit which accrued in favour of the petitioner in the year

2008. Therefore, this Court is not inclined to entertain the prayer as made in the Writ Petition and dismiss the same.

6. Accordingly, the Writ Petition is dismissed. Orissa High Court, Cuttack Dated the 24th April, 2024/Basudev (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Jul-2025 18:45:06