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Judgment
D. K. Seth, J.
The petitioner designated as General Manager in the erstwhile U.P. Government Roadways, later redesignated as the Regional Manager, was appointed on deputation to the Government of Sikkim, on the post of General Manager, Sikkim Nationalised Transport, with the Headquarter at Ganktok. He continued on the said deputation from 2031976 till 3131978 namely the date of the retirement from service of the Government of Uttar Pradesh while on deputation, as aforesaid. On account of such deputation the petitioner was paid composite compensatory allowance of Rs. 600 on the petitioner''s basic pay of Rs. 1500. Out of the said composite compensatory allowance fifty per cent was treated as deputation specialpay as per terms and conditions of Sikkim Government Notification dated 19th May, 1976. According to the petitioner the said special pay formed part of the petitioner''s pay and, as such, the same was to be included while computing the petitioner''s pension. Since he had retired while on deputation therefore, he is entitled to a higher pension, which was denied to him, namely when calculating the quantum of pension, the special pay was omitted. On 4th December, 1976, the petitioner made a representation, (Annexure2 to the petition explaining the position in support of calculation of pension. But the said representation was not decided for a long time Ultimately by an order dated 20th April 1987 (Annexure3 to the petition) the petitioner''s representation was rejected. In the above background the petitioner claimed the following reliefs:
"(a) issue a writ, order or direction in the nature of mandamus directing the respondents to include Rs. 300 towards pension together with basic salary which the petitioner was getting at the time of retirement.
(b) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay arrears of pension and gratuity on the basis of total salary of Rs. 1500+300=1800 together with arrears which was due since 1st April, 1978.
(c) Issue any other writ, order or direction as this Hon''ble court may deem just and proper in the circumstances of the case.
(d) Award cost of the petition in favour of the petitioner."
In the counteraffidavit the respondent No. 1, State of Uttar Pradesh contended that after creation of U.P. State Road Transport Corporation ( here in after referred to as UPSRTC) the post of General Manager of the erstwhile U.P. Government Roadways was redesignated as the Regional Manager. The petitioner, who was on deputation in Sikkim, had retired from service on 313 1978. But he continued to serve the Sikkin Rashtriya Parivahan on a consolidated pay of Rs. 2000 per month till 31st March, 1980. The terms and conditions of the petitioner''s deputation to Sikkim Parivahan were fixed by Government Order, dated 22nd June 1977, (AnnexureCAl). In terms there of the compensatory allowance sanctioned by ths Sikkim Government could not be included for the purposes of computing pension payable by the Govt. of Uttar Pradesh. The Sikkim Government had issued a Pay Certificate to the petitioner, wherein it was duly mentioned that the petitioner''s pay was Rs. 1500 per month. The petitioner''s pension was accordingly calculated and the special pay did not find mention in the last pay certificate of the petitioner. The representation of the petitioner, therefore, was rejected by an order dated 2841987 (AnnexureCA2)
No rejoinderaffidavit to the said counteraffidavit appears to have been filed. Mohd. Jafar, learned counsel appearing on behalf of the petitioner also did not claim that any rejoinder affidavit has been filed against the said counteraffidavit.
The respondent No. 2, UPSRTC, in its counteraffidavit had pointed out that the petitioner having been retired on 3131978, continued to serve the Sikkim Parivahan till 31st March, 1980 at a consolidated Pay of Rs. 2000 per month. The petitioner was sent on deputation on the terms and conditions contained in the Government Order dated 2261977 (AnnexureCA 1). The representation of the petitioner for including the composite compensatory allowance towards computation of pension was rejected by the State Government vide order dated 20th April, 1987 (AnnexureCA 2). The petitioner''s services was given on loan to the Government of Sikkim with the terms and conditions applicable to the State Government officers. The compensatory allowance sanctioned by the Government of Sikkim, therefore, cannot included while computing pension. In the last Pay Certificate issued by the Government of Sikkim, special pay was not mentioned. The said Last Pay Certificate mentions the petitioner''s pay as Rs. 1500 per month. There was nothing on record to show that the petitioner was being paid any special pay. The petitioner is guilty of inordinate delay in moving the writ petition.
The petitioner, in the rejoinderaffidavit had reiterated his case, as made out in the writ petition. It is contended by the petitioner that the officers from different States were obtained on deputation in Sikkim for managing its Rashtriya Parivahan. Therefore, for the purposes of uniformity of pay and terms and conditions of other States the Government of Sikkim has formulated and framed its own terms and conditions for the officers of other States. The petitioner was deputed to Sikkim on the terms and condition that might be made available to the petitioner by the Government of Sikkim. The petitioner had never made any request for including compensatory allowance towards calculation of pension, he had only claimed inclusion of Special pay for the said purposes. The petitioner admitted that he was a State Government employee and his services were given on loan to the Government of Sikkim since he had retired while on deputation, therefore, the Special pay is liable to be included for computing pension. The petitioner admitted that in the Last Pay Certificate the Government of Sikkim had mentioned the amount of last pay drawn as Rs. 1500. It was not necessary to included the special pay in the said certificate. The State Government rejected the petitioner''s valid claim by order dated 2041987. Therefore, it cannot be said that there was any delay.
Mohd. Jafar, learned counsel appearing on behalf of the petitioner contends that since the special pay formed part of the petitioner''s pay, therefore, the same is liable to be included towards computation of pension. He sought to explain delay on the ground that he waited for decision on his representation and only when the representation was rejected in the year 1987 he could move the present writ petition. He also contended that since the petitioner is entitled to pension calculated on the pay including special pay, therefore, the writ petition should be allowed.
Sri Sameer Sharma, learned counsel appearing on behalf of U.P.S.R.T.C. contended that the application is not maintainable on account of tielay. Inasmuch as the petitioner having retired in 1978 had moved the writ petition in the year 1990 namely, after long period of 12 years. Secondly, he contended that the petitioner having not challenged the order, dated 2041987 by which his claim had been rejected, no relief can be granted to the petitioner so long as the order remains there.
He further contended that the petitioner having been appointed in terms of the Government Order dated 2261977 and he being the State Government Officer cannot claim any special status because of his deputation. The alleged special pay allowed by the Government of Sikkim cannot alter the situation. Then again there was nothing on record to show that the petitioner was being paid the alleged special pay.
Learned standing counsel appearing on behalf of respondent No. 1 adopted the argument of Sri Sharma and contended that though the petitioner himself had indicated the fact of rejection of his representation, in the writ petition itself, he did not challenge the said order. Even when the nonchallenge of the said order dated 2041987 was taken as a ground in the counteraffidavit of the respondent No. 1 as well as in that of respondent No. 2, the petitioner had never attempted to challenge the said order though the petitioner had filed his rejoinder affidavit to the counter affidavit of the U.P.S.R.T.C. on 1471992.
After having heard the learned counsel for both the parties it appears that apart from the question of merit two interesting questions emerge for our decision. If the said decision goes in favour of the petitioner only then we are called upon to enter into the merit of the claim of the petitioner. We, therefore, propose to decide the said two questions, as has been raised by Sri Sharma, learned counsel for the Corporation, supported by the learned Standing counsel, first.
Whether the petitioner can maintain the present writ petition for the purpose of seeking the relief prayed without challenging the order, dated 2041987, aforesaid, is the first question, raised by the learned counsel for the respondents.
It is apparent from the statement made in the writ petition itself that the petitioner had made a representation on 4th December, 1976 (Annexure2 to the petition, He retired from service on 31st March, 1978. He did not take any steps till 1990 to assert his claim. On the other hand he waited for the outcome of his representation, which was rejected on 20th April, 1987. Though he has mentioned the said fact in para19 of the writ petition (Annexure3 to the writ petition) yet he has not challenged the said order. Unless the order is challenged the court is not called upon to interfere with the same. The said order stares on the face of the petitioner with regard to his claim, which stands decided and disposed of by the said order. The effect of the said order can not be wiped out unless the same is quashed or otherwise declared void or nullity. Since the petitioner has not challenged the said order despite the grounds taken in the counteraffidavit (para10 of the counteraffidavit of respondent No. 1 and para7 of the counter affidavit of respondent No. 2), therefore, this court is not called upon to interfere with the said order. Accordingly, we are of the view that unless challenged the court is powerless to interfere with a particular order, not challenged before it. So long as the said order remains valid the petitioner does not have any case. In other words, the petitioner having not challenged the same he has waived his right with regard to the claim and is estopped from reagitating the claim.
The second question raised is that whether this Court should exercise its discretion in view of inordinate delay in moving the writ petition.
Admittedly, the petitioner had retired on 31st March 1978. The petitioner had claimed inclusion of special pay in calculation of pension by means of his representation dated 4th December, 1976. He was aware of his claim in the year 1976. After his retirement on 3131978 he did not take any steps nor he made any further representation neither he approached this court even after 3131980 till then the petitioner remained on extended service nor did he take any steps to assert his right. He waited till 2041987 to witness his representation rejected. Even then the petitioner did not activate himself with in reasonable time after rejection of his claim on 2041987. He woke up from his slumber in 1990. No explanation explaining the delay has been given in the writ petition. Admittedly, making of successive representations for a long period or waiting for the outcome on the representation made for indefinite long period definitely speaks against the petitioner''s diligence in asserting his claim by invoking the writ jurisdiction, a factor to be taken into account in order to exercise discretion by the court when its writ jurisdiction is sought to be invoked.
Admittedly, there has been inordinate delay, unexplained on the part of the petitioner, in invoking writjurisdiction. The lack of diligence delay and laches on the part of the petitioner disentitles him from seeking equity jurisdiction of this court to exercise its discretion.
Then again the representation made by the petitioner in the present case is not a remedy appointed by law. Learned counsel for the respondent cites decision in the case of Jagdisn Narain Maltiar v. The State of Bihar and others AIR 1973 SC1343 and relies on para 8 there of. In the said case it was held mat submission of memorials one after another for nearly three years were in the nature of mercy petitions and the petitioners there in should have realised that in pursuing a remedy which was not duly appointed by law, he was putting in peril a right of high value and significance. By reasons of his conduct, the petitioner there in has disabled the High Court from exercising its extraordinary powers in his favour.
He also relied on the ratio decidendi in the case of Prabodh Verma and others v. State of Uttar Pradesh and others, AIR 1985 SC 167 and refers to para50 there of. In the said case it was held that though the High Court ought not to dismiss the writ petition on mere technicalities or because the proper relief has not been asked for but it should not therefore, condone every kind of laxity, particularly, where the petitioner is represented by an Advocate.
It is the consensus view of the Supreme Court that extra ordinary power exercised under Article 226 is discretionary and such discretion is exercised where the Court finds that the person seeking to invoke the extraordinary jurisdiction is not guilty of laches or undue delay. The Court intervenes only when it is satisfied that there is no laches or delay on the part of the petitioner or that the same has been properexplained. Pursuit of extraordinary legal remedy such as departmental representation or correspondence the nature of an appeal for mercy are not grounds for condoning the delay, unless such appeal or representation is provided in the Statute is the view taken by the Hon''ble Supreme Court in the cases Raja Lakshmaiah Setty v. State of Mysore, AIR 1967 SC 997 at page 997. Gian Singh Mann v. High Court of Punjab andHaryana, AIR 1960 SC 1894 (para3) making of repeated representations after the rejection does not exonerate delay in moving the Court as has been observed in the case of State of Orissa v. Pyarimohan Samantaray, AIR 1976 SC 2617 (para6) and State of Orissa v.Arun Kumar, AlR 1976 SC 1639 (para 14). Pursuing an ill conceived remedy has been held not to be a proper explanation for the delay and such a question has been left to the discretion of the court in the case of Ram Chandra Shanker Deodhar v. The State of Maharashtra, AIR 1974 SC 259 (para10). The proper standard, however, has been held to be whether in the circumstances of the case, the time that he has been elapsed can be said to be reasonable in the case of Babu Singh v. Union of India, AIR 1979 SC1713 (para11). The reasonableness has to be assessed by the court having regard to the facts and circumstances of the case touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to general public etc. is the view taken in the case of Shri Vallabh Glass Works Ltd. v. Union of India 1984 (3) SCC 362(para9).
In the present case, the representation made by the petitioner is not a remedy appointed by law and he waited till 1990 though the representation was rejected in the year 1987. Then again evenafter 1987 there was three years delay which is thoroughly unexplained. At the same time he waited on a remedy not appointed by law till 1987. The petitioner had all along been represented by an Advocate. The ground of nonchallenge of the order, dated 2041987 was taken in the counteraffidavit, served on the petitioner in the year 1992 even then the same was not challenged. The laxity, therefore, in the present case, cannot be condoned. Over and above, the defect in the present case is a mere technicality. The laxity has the effect of operating as waiver and estoppel which is a right accrued to the other side by lapse of time, a fact which can not be overlooked.
Thus both the questions having been answered against the petitioner, the writ petition can not be sustained and, thus according to us it is not necessary to go into the question of merit of the case.
In the result the writ petition fails and is here by dismissed. There will, however, be no order as to costs.