# Smt. Sarla Mishra v. State of U.P. & Ors - **Citation:** (2016) 3 ILRA 498 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-24 - **Bench:** Rakesh Tiwari, Vivek Kumar Birla - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sarla-mishra-v-state-of-u-p-ors-43477 - **Pages:** 5 ## Headnote order dated 30.1.2009 and 9.11.2010 passed by the Writ Court in Civil Misc. Writ Petition No. 5243 of 2009, Smt. Sarla Mishra Vs. State of U.P. through its Principal Secretary, Secondary Education, Lucknow and others.It appears from the record that a review application was preferred by the petitioner - appellant, which was also dismissed vide order dated 9.11.2010 saying that no ground for review is made out.This defective special appeal no. 326 of 2011 has thereafter been filed by the appellant alongwith delay condonation application. The office has reported that the appeal filed on 19.3.2009 is beyond time by 2 years 11 days. It appears from the report of the Stamp Reporter as well as from the judgment impugned in this appeal that the appellant had approached the Court after a delay of 27 years and thereafter had preferred the special appeal after 2 years. The laches of 29 years have not been satisfactorily explained. It is, therefore, clear that even after passing of the judgment in Writ Petition No. 11208 of 1982 dated 27.9.2004 the petitioner did nothing for four years. As such no relief can now be granted to the petitioner on the strength of the judgment dated 27.9.2004 passed in Writ petition No. 11208 of 1982. In our considered opinion, the approach of the Writ Court cannot faulted with and the writ petition filed by the petitioner has rightly been dismissed 3 All. Smt. Sarla Mishra Vs State Of U.P. & Ors. 499 on the ground of laches. For all the reasons stated above, this special appeal is dismissed on the ground of laches. Held: Para- Case Law discussed: K.B. Laxmiya Shetty and others v. State of Mysore and others [A.I.R. 1967 S.C. 993] Gyan Singh v. High Court Punjab & Haryana [A.I.R. 1980 S.C. 1894 Karnakata Power Corporation Ltd. V. K. Thangappan [2006 (4) S.C.C. 322]."State of Orissa and another Vs. Mamata Mohanty (2011) 3 SCC 436, Lachhmi Sewak Sahu v. Ram Rup Sahu & Ors., AIR 1944 Privy Council 24; and Kamlesh Babu v. Lajpat Rai Sharma and ors, (2008) 12 SCC 577). Rup Diamonds v.Union of India, AIR 1989 SC 674; State of Karnataka & Ors. V. S.M.Kotrayya & Ors., (1996) 6 SCC 267; and Jagdish Lal v. State of Haryana, AIR 1997 SC 2366)." ## Text 498 INDIAN LAW REPORTS ALLAHABAD SERIES 17. In present case there is no sufficient ground for condoning the deliberate very long delay in moving substitution application. In absence of any reasonable or sufficient ground, the Delay Condonation Application No.-18665/2016 and Abatement (Setting Aside) Application No.-18666/2016 are rejected. Therefore, being time barred, Substitution Application No.-18669/2016 is also rejected. Accordingly, Abatement Application No. 360049/2014 moved by respondents' side is allowed. This appeal is declared abated against deceased respondent no.-1 Girija Shanker Upadhyaya. 18. After the death of respondent no.-1, whether the appeal can proceed against other respondents or whether cause of action had also abated is a matter that requires hearing. 19. List on 18th March, 2016 for hearing. -------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.02.2016 BEFORE THE HON'BLE RAKESH TIWARI, J. THE HON'BLE VIVEK KUMAR BIRLA, J. Special Appeal Defective No. - 326 of 2011 Smt. Sarla Mishra ...Appellant Versus State of U.P. & Ors. ...Respondents Counsel for the Appellant: Bhoopendra Nath Singh, Devendra Pratap Singh Counsel for the Respondents: C.S.C. This special appeal has been preferred challenging the validity and correctness of the judgment and order dated 30.1.2009 and 9.11.2010 passed by the Writ Court in Civil Misc. Writ Petition No. 5243 of 2009, Smt. Sarla Mishra Vs. State of U.P. through its Principal Secretary, Secondary Education, Lucknow and others.It appears from the record that a review application was preferred by the petitioner - appellant, which was also dismissed vide order dated 9.11.2010 saying that no ground for review is made out.This defective special appeal no. 326 of 2011 has thereafter been filed by the appellant alongwith delay condonation application. The office has reported that the appeal filed on 19.3.2009 is beyond time by 2 years 11 days. It appears from the report of the Stamp Reporter as well as from the judgment impugned in this appeal that the appellant had approached the Court after a delay of 27 years and thereafter had preferred the special appeal after 2 years. The laches of 29 years have not been satisfactorily explained. It is, therefore, clear that even after passing of the judgment in Writ Petition No. 11208 of 1982 dated 27.9.2004 the petitioner did nothing for four years. As such no relief can now be granted to the petitioner on the strength of the judgment dated 27.9.2004 passed in Writ petition No. 11208 of 1982. In our considered opinion, the approach of the Writ Court cannot faulted with and the writ petition filed by the petitioner has rightly been dismissed 3 All. Smt. Sarla Mishra Vs State Of U.P. & Ors. 499 on the ground of laches. For all the reasons stated above, this special appeal is dismissed on the ground of laches. Held: Para- Case Law discussed: K.B. Laxmiya Shetty and others v. State of Mysore and others [A.I.R. 1967 S.C. 993] Gyan Singh v. High Court Punjab & Haryana [A.I.R. 1980 S.C. 1894 Karnakata Power Corporation Ltd. V. K. Thangappan [2006 (4) S.C.C. 322]."State of Orissa and another Vs. Mamata Mohanty (2011) 3 SCC 436, Lachhmi Sewak Sahu v. Ram Rup Sahu & Ors., AIR 1944 Privy Council 24; and Kamlesh Babu v. Lajpat Rai Sharma and ors, (2008) 12 SCC 577). Rup Diamonds v.Union of India, AIR 1989 SC 674; State of Karnataka & Ors. V. S.M.Kotrayya & Ors., (1996) 6 SCC 267; and Jagdish Lal v. State of Haryana, AIR 1997 SC 2366)." (Delivered by Hon'ble Rakesh Tiwari, J.) 1. This special appeal has been preferred challenging the validity and correctness of the judgment and order dated 30.1.2009 and 9.11.2010 passed by the Writ Court in Civil Misc. Writ Petition No. 5243 of 2009, Smt. Sarla Mishra Vs. State of U.P. through its Principal Secretary, Secondary Education, Lucknow and others. 2. The writ petition was filed with the following prayers: "(i) Issue a writ, order or direction in the nature of mandamus commanding respondent no. 3 to pass appropriate order on the representation dt. 03.04.2008 (i.e. Annexure No. 6 to the writ petition) in the light of the appended judgment/order dt. 27.09.2004 of this Hon'ble Court passed in the writ petition no. 11208 of 1982 of Smt. Bimla Kumari/Petitioner's junior colleague; (ii) Issue a writ, order or direction in the nature of mandamus commanding respondents to allow the same basic grade i.e. Rs. 200-320 in place of the modified/reduced grade Rs. 175-250 at the relevant time to the petitioner as was given to her junior colleague Smt. Bimla Kumari and add the deduction made from her salary in pursuance of the impugned order dt. 6.4.1982 passed by the respondent no. 4 in the salary of the petitioner and fix her salary accordingly; (iii) Issue any other writ, order or direction which the Hon'ble court may deem fit in the circumstances of the instant writ petition; (iv) Award the cost of the petition to the petitioner." 3. The Writ Court after hearing counsel for the petitioner - appellant dismissed the writ petition holding that mere filing of repeated non-statutory and unsolicited representations are not defence or explanation for laches. Referring to the judgment of the Apex Court the Writ Court concluded that such explanation for inordinate delay and laches cannot be a ground for exercising the extraordiary jurisdiction under Article 226 of the Constitution of 500 INDIAN LAW REPORTS ALLAHABAD SERIES India. Noticing the fact that the petitioner - appellant had approached this Court after about 27 years of her pay fixation the writ petition was dismissed by order dated 30.1.2009 in the following terms: "Mere filing of repeated non-statutory and unsolicited representation cannot be taken as a defence or explanation for laches. The Apex Court about two scores of years ago in K.B. Laxmiya Shetty and others v. State of Mysore and others [A.I.R. 1967 S.C. 993] and again reiterated in Gyan Singh v. High Court Punjab & Haryana [A.I.R. 1980 S.C. 1894] has held that such explanation for inordinate delay and laches cannot be a ground for exercising the extra ordiary jurisdiction under Article 226 of the Constitution of India. This view has again been reiterated by the Supreme Court in the case oft Karnakata Power Corporation Ltd. v. K. Thangappan [2006 (4) S.C.C. 322]." 4. It appears from the record that a review application was preferred by the petitioner - appellant, which was also dismissed vide order dated 9.11.2010 saying that no ground for review is made out. 5. This defective special appeal no. 326 of 2011 has thereafter been filed by the appellant alongwith delay condonation application. The office has reported that the appeal filed on 19.3.2009 is beyond time by 2 years 11 days. 6. It appears from the report of the Stamp Reporter as well as from the judgment impugned in this appeal that the appellant had approached the Court after a delay of 27 years and thereafter had preferred the special appeal after 2 years. The laches of 29 years have not been satisfactorily explained. 7. A reference may be made to the law laid down by Hon'ble Apex Court in the case of State of Orissa and another Vs. Mamata Mohanty (2011) 3 SCC 436, paragraphs 52, 53 and 54 whereof are quoted as under:- "52. In the very first appeal, the respondent filed Writ Petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter. (See: Lachhmi Sewak Sahu v. Ram Rup Sahu & Ors., AIR 1944 Privy Council 24; and Kamlesh Babu v. Lajpat Rai Sharma and ors, (2008) 12 SCC 577). 53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular 3 All. Smt. Sarla Mishra Vs State Of U.P. & Ors. 501 pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986. 54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See: Rup Diamonds v. Union of India, AIR 1989 SC 674; State of Karnataka & Ors. v. S.M. Kotrayya & Ors., (1996) 6 SCC 267; and Jagdish Lal v. State of Haryana, AIR 1997 SC 2366)." 8. In view of the above noted decision in the case of State of Orissa and another Vs. Mamata Mohanty (supra) no relief can be granted to the appellant on the basis of judgment and order dated 27.9.2004 passed by this Court in Writ Petition No. 11208 of 1982 (Smt. Bimla Kumari Vs. State of U.P. and others). It may also be noticed that Annexure-1 to the review application at page 66 of the paper book was never filed before the Writ court to establish that the petitioner had ever agitated her case in the year 1982 itself before the concerned state authority. It is only a letter issued to the petitioner allegedly in the year 1983 by the Manager of the institution. 9. On the contrary Annexure-6 to the writ petition at page 52 of the paper book indicates that she had represented for the first time in the year 2008 vide representation dated 3.4.2008, which was rejected vide order dated 28/29.4.2008 by the District Inspector of Schools, Etawah on the ground that Smt. Bimla Devi was granted relief in pursuance of the judgment of this Court. 10. It is, therefore, clear that even after passing of the judgment in Writ Petition No. 11208 of 1982 dated 27.9.2004 the petitioner did nothing for four years. As such no relief can now be granted to the petitioner on the strength of the judgment dated 27.9.2004 passed in Writ Petition No. 11208 of 1982. 11. In our considered opinion, the approach of the Writ Court cannot faulted with and the writ petition filed by the petitioner has rightly been dismissed on the ground of laches. 12. For all the reasons stated above, this special appeal is dismissed on the ground of laches. -------- 502 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 12.01.2016 BEFORE THE HON'BLE RAKESH TIWARI, J. THE HON'BLE SHASHI KANT, J. Special Appeal No. - 97 of 2002 Isar Ahmad ...Appellant Versus S.S.P., Agra & Anr. ...Respondents Counsel for the Appellant:- W.H.Khan, J.H.Khan Counsel for the Respondents: C.S.C This special appeal has been preferred against the Judgment and order dated 13.12.2001 passed by learned Single Judge Brief facts of the case are that the petitioner- Appellant Was selected and appointed as Constable on 22.12.1991After written and physical examinations. He joined at Kanpur on 22.12.1991 and was sent to Agra for training.While petitioner-appellant was undergoing training,he was served with a order dated 25.8.1992 issued by the Senior Superintendent of Police, Agra, terminating his Services on the ground that petitioner was involved in Criminal case no. 113 of 1990 under section 304-B,IPC, Neutral Citation No. - 2016:AHC:5951-DB Upon making him entitled to one month's salary under the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. Aggrieved by said order, petitioner- Appellant filed writ petition on the ground that the order of Termination appears to be innocuous as the same was Passed without holding any inquiry on the alleged Participation of the petitioner in case crime no. 113 of 1990 u/s 304-B, IPC, P.S. Khanna, District Hamirpur. The Writ petition has been dismissed by learned Single Judge On 13.12.2001 holding that ground of termination is not the involvement of petitioner in criminal case but the Suppression of fact that he was involved in a criminal Case. Hence the present special appeal has been filed. Having heard learned counsel for the parties and on Perusal of record, we are of the considered opinion that the ground of termination is not the involvement of the Petitioner-appellant's in criminal case but the suppression of fact that the petitioner was involved in a criminal case.The petitioner was given an opportunity to explain as to Why he had not disclosed this fact in his affidavit. In fact,He admitted that he had applied for bail in the case under Section 304-B I.P.C. Petitioner-appellant's statement that He had not gone to jail was not found to be correct and thereafter his further statement that he is not Nisar Ahmad but Isar Ahmad was also found to be untrue on making inquiry from Police Station-Khanna, District-Hamirpur. Thus, a fact finding inquiry in which petitionerAppellant was associated and also provided with adequate opportunity to give detailed statement were sufficient to form a conclusion that he is not a fit person to Continue in service.For entry in civil police the competent authorities are b bound to adhere to the strict standards and to take only those who are fit and competent both in character and Integrity for discharging their disciplined duties in which