# Om Prakash Yadav v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1282
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-08-05
- **Case number:** Civil Misc. Writ Petition No.42288 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-yadav-v-state-of-u-p-and-ors-42689
- **Pages:** 3

## Headnote

Constitution of India, Art.-226- Service
Law-Termination order-challenged after
8 years delay-court declined to interfere
on ground of latches coupled with
conduct
of
petitioner-transfer
order
passed long back in the year 1998-not
complied inspite of frequent petition
after 4th petition no relief grantedconsequently termination order passedheld-delay can be ground for denied to
interfere with order impugned.

Held: Para-10-
It is now a trite law that where the writ
petitioners approaches the High Court
after a long delay, reliefs prayed for may
be denied to them on account of delay
and laches irrespective of the fact that
they are similarly situated to other
candidates who have got the benefit.

Case Law discussed:
AIR 1989 SC 1433; AIR 2003 SC 1724; (2009)
11 SCC 678; 2007(4) SC 253; 1994 (6) SC 71;
1995(5) SCC 628; AIR 1961 SC 993; AIR 1976
SC 2617; 1976(3) SCC 579; AIR 2007 SC
1330-2007(1)Supreme 455; 2008(4)ESC 2423;
2009(1) SCC 297; 2009(2)SCC 479; 2009(3)
SCC 281; (1874) 5 PC 239.

## Text

1282 INDIAN LAW REPORTS ALLAHABAD SERIES

13. A Division Bench in Writ
Petition No. 6095 (S/S) of 1996 (State of
U.P. & another Vs. S.P. Singh Pundhir
and another) decided on 09.08.2007,
considering the aforesaid judgements of
the Apex Court, has also held as under:-

"There is no hard and fast rule that
disciplinary proceedings initiated after a long
time would be per se improper or illegal
merely for the reason that it has been initiated
after long lapse of time but it depends upon
the facts and circumstances of that case. For
example, if the delinquent employee could
show that after long lapse of time he has lost
evidence or has no capacity to defend
himself due to loss of memory etc. then
indulgence can be granted on this ground but
mere delay in the proceedings can not vitiate
the same."

14. In view of above, the writ
petition lacks merit. Dismissed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.42288 of 2013

Om Prakash Yadav
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Vinod Sinha, Sri Mahesh Sharma

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226- Service
Law-Termination order-challenged after
8 years delay-court declined to interfere
on ground of latches coupled with
conduct
of
petitioner-transfer
order
passed long back in the year 1998-not
complied inspite of frequent petition
after 4th petition no relief grantedconsequently termination order passedheld-delay can be ground for denied to
interfere with order impugned.

Held: Para-10-
It is now a trite law that where the writ
petitioners approaches the High Court
after a long delay, reliefs prayed for may
be denied to them on account of delay
and laches irrespective of the fact that
they are similarly situated to other
candidates who have got the benefit.

Case Law discussed:
AIR 1989 SC 1433; AIR 2003 SC 1724; (2009)
11 SCC 678; 2007(4) SC 253; 1994 (6) SC 71;
1995(5) SCC 628; AIR 1961 SC 993; AIR 1976
SC 2617; 1976(3) SCC 579; AIR 2007 SC
1330-2007(1)Supreme 455; 2008(4)ESC 2423;
2009(1) SCC 297; 2009(2)SCC 479; 2009(3)
SCC 281; (1874) 5 PC 239.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This is a case where an employee,
who was transferred as long back as in
May' 1998 could dare to defy order of
transfer for years together though there
was no authority in the shape of stay order
passed by this Court or by the executive
authorities.

2. It appears that challenging the order
of transfer passed on 29.5.1998, transferring
the petitioner from Tube Well Division, Etah,
Region Aligarh to Agra, he preferred Civil
Misc. Writ Petition No. 33046 of 1998 which
was disposed of on 4.10.1998 permitting the
petitioner to make a representation and the
authorities were directed to decide the same.
Admittedly, the order of transfer was neither
stayed nor the petitioner was otherwise had
any authority not to comply with the order of
transfer. The authority concerned rejected
petitioner's representation by order dated
3 All] Om Prakash Yadav Vs. State of U.P. and Ors.
1283
5.12.1998. Even till that date, order of
transfer was not complied with. The order
rejecting representation was challenged in
Civil Misc. Writ Petition No. 865 of 1999
which was allowed on 22.11.2001 and the
authority concerned was directed to decide
petitioner's representation afresh giving
reasons.
By
a
detailed
order,
the
representation was rejected vide order dated
23.1.2002, whereagainst petitioner came in
third Writ Petition No. 21510 of 2002 which
was dismissed on 5.7.2005, whereagainst
Special Appeal No. 959 of 2005 was
preferred which was also dismissed by order
dated 22.8.2005. Even during this entire
period, petitioner did not comply with the
order of transfer having been passed as long
back as on 29.5.1998. Then again petitioner
came to this Court in fourth Writ Petition No.
65052 of 2005 seeking a mandamus
commanding the respondents to allow him to
join at transferred place at Agra. In this writ
petition, an explanation was sought by this
Court vide order dated 5.10.2005 from
authorities concerned as to why no action has
been taken against the petitioner for not
complying order of transfer passed on
29.5.1998. Ultimately this writ petition was
also dismissed on 22.5.2013.

3. The fact remains that the
petitioner having not complied with the
order of transfer, the competent authority,
in the meantime, by order dated 3.10.2005
had terminated him from service.

4. Now this writ petition has been filed
challenging this order of termination on the
ground of having been passed without holding
enquiry and, therefore, vitiated in law.

5. There are at least two major
hurdles in petitioner's way. First that the
defiance of order of transfer on the part of
petitioner is an admitted fact, which has
continued for almost six years.

6. In Gujarat Electricity Board and
another Vs. Atmaram Sungomal Poshani
AIR 1989 SC 1433, this Court had an
occasion to examine the case of almost similar
nature. This Court observed as under:

"Transfer from one place to another is
necessary in public interest and efficiency in
the public administration. Whenever, a
public servant is transferred he must
comply with the order but if there be any
genuine difficulty in proceeding on transfer
it is open to him to make representation to
the
competent
authority
for
stay,
modification or cancellation of the transfer
order. If the order of transfer is not stayed,
modified or cancelled the concerned public
servant must carry out the order of transfer.
In the absence of any stay of the transfer
order a public servant has no justification
to avoid or evade the transfer order merely
on the ground of having made a
representation, or on the ground of his
difficulty in moving from one place to the
other. If he fails to proceed on transfer in
compliance to the transfer order, he would
expose himself to disciplinary action under
the relevant Rules, as has happened in the
instant case. The respondent lost his service
as he refused to comply with the order of his
transfer from one place to the other."

7. In Mithilesh Singh v. Union of
India and Ors. AIR 2003 SC 1724, the
settled legal position has been reiterated. The
court held that absence from duty without
proper intimation is indication of a grave
misconduct warranting removal from service.

8. The above authorities have been
referred to and followed by Apex Court
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
recently in Tushar D. Bhatt Vs. State of
Gujarat and Anr. (2009) 11 SCC 678.

9. Besides, the termination order
was passed in 3.10.2005 and has been
challenged in 2013 by means of this Writ
Petition. There is no explanation about
this extraordinary delay and laches of
eight years in the entire writ petition.

10. Delay and laches constitute
substantial reason for disentitling relief in
equitable jurisdiction under Article 226 of the
Constitution of India. In New Delhi Municipal
Council Vs. Pan Singh and others
J.T.2007(4) SC 253, the Apex Court observed
that after a long time the writ petition should
not have been entertained even if the petitioners
are similarly situated and discretionary
jurisdiction may not be exercised in favour of
those who approached the Court after a long
time. It was held that delay and laches were
relevant factors for exercise of equitable
jurisdiction. In M/S Lipton India Ltd. And
others vs. Union of India and others, J.T.
1994(6) SC 71 and M.R. Gupta Vs. Union of
India and others 1995(5) SCC 628 it was
held that though there was no period of
limitation provided for filing a petition under
Article 226 of Constitution of India, ordinarily
a writ petition should be filed within reasonable
time. In K.V. Rajalakshmiah Setty Vs. State
of Mysore, AIR 1961 SC 993, it was said that
representation
would
not
be
adequate
explanation to take care of delay. Same view
was reiterated in State of Orissa Vs. Pyari
Mohan Samantaray and others AIR 1976
SC 2617 and State of Orissa and others Vs.
Arun Kumar Patnaik and others 1976(3)
SCC 579 and the said view has also been
followed recently in Shiv Dass Vs. Union of
India and others AIR 2007 SC 1330=
2007(1) Supreme 455 and New Delhi
Municipal Council (supra). The aforesaid
authorities of the Apex Court has also been
followed by this Court in Chunvad Pandey
Vs. State of U.P. and others, 2008(4) ESC
2423. This has been followed in Virender
Chaudhary
Vs.
Bharat
Petroleum
Corporation & Ors., 2009(1) SCC 297. In
S.S. Balu and another Vs. State of Kerala
and others, 2009(2) SCC 479 the Apex Court
held that it is well settled principle of law that
delay defeats equity. It is now a trite law that
where the writ petitioners approaches the High
Court after a long delay, reliefs prayed for may
be denied to them on account of delay and
laches irrespective of the fact that they are
similarly situated to other candidates who have
got the benefit. In Yunus Vs. State of
Maharashtra and others, 2009(3) SCC 281
the Court referred to the observations of Sir
Barnesdelay Peacock in Lindsay Petroleum
Company Vs. Prosper Armstrong Hurde
etc. (1874) 5 PC 239 and held as under:

"Now the doctrine of laches in Courts of
Equity is not an arbitrary or 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. . . . . . .
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 in taking the one course or the other,
so far as relates to the remedy."

11. In these facts and circumstances, I
do not find it a fit case justifying exercise of
equitable extraordinary jurisdiction under
Article 226 of the Constitution.
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