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Judgment
This petition under Article 215 of the Constitution of India has been filed complaining the non-compliance of the order dated 08.01.2008 passed by coordinate Bench of this Court in W.P. No. 5293/2003.
It is submitted that the earlier counsel for the applicant never informed the petitioner about the outcome of the petition and ultimately, in the year 2020, the petitioner contacted the present counsel and, thereafter, he traced out the status of the W.P. No. 5293/2003 and came to know that it has already been decided in the year 2008 and, accordingly, a fresh writ petition No. 9878/2020 was filed which was dismissed by this Court by order dated 24.07.2020 holding that the second petition for the similar relief is not maintainable. However, the liberty was given to the petitioner that he can avail the remedy, which may be available to him under the law. It is submitted that thereafter the petitioner has made a representation, but the same has not been decided, therefore, the respondents have committed gross contempt of Court by not following the order dated 08.01.2008 passed in W.P. No. 5293/2003. It is further submitted by the counsel for the petitioner that it was the duty of the earlier counsel to inform the outcome of the petition and since he has failed in discharging his duty, therefore, not only the earlier counsel is guilty of professional misconduct, but since the petitioner was not having any knowledge of the order dated 08.01.2008, therefore, the period of limitation would not start till the petitioner gets knowledge of the said order.
Heard the learned counsel for the petitioner.
So far as the question of knowledge of the fact is concerned, it is not absolute in nature. Section 17 of the Limitation Act reads as under:-
"17. Effect of fraud or mistake.-(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,-
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be. "
From the plain reading of the aforesaid provision, it is clear that unless and until the petitioner succeeds in establishing that in spite of reasonable diligence, he could not discover the fact or themistake, the period of limitation shall continue to run. It is not the case of the petitioner that after the year 2008, he ever contacted his earlier counsel or had ever come to the High Court to verify the status of his writ petition. Thus, it is clear that after filing the writ petition in the year 2003, the petitioner did not take any steps and even did not try to verify the progress in his case.
Although, it is the submission of the counsel for the applicant that non-communication of result by his earlier Advocate amounts to professional misconduct and it was the duty of the Advocate to communicate the result to his client, but could not point out any provision of law, which makes it obligatory on the part of the Advocate to inform the result of the litigation. If the applicant did not contact his earlier counsel, then the earlier counsel might have a moral duty to inform the petitioner about the result, but non-communication of result cannot be treated as a professional misconduct.
Further, it is well established principle of law that if the personal allegation has been made against a person, then he should be impleaded in the said proceeding. The petitioner has not impleaded his earlier counsel as respondent. Therefore, the allegation of the petitioner that he was never informed by his earlier counsel about the outcome of the writ petition cannot be looked into and cannot be accepted due to non-joinder of necessary party. Further, the case of the petitioner was that he was initially appointed on a temporary basis for a period of 89 days on the post of contingent waterman and the District Organizer Shivpuri by order dated 31.03.1987 directed that the petitioner and other similarly situated persons shall work under the pay scale of Rs.545-925 as Lower Division Teacher.
Accordingly, the petitioner filed the writ petition seeking the following relief:-
"(i) That, the respondents be directed to allow the applicant to continue as Asstt. Teacher like other persons as appointed vide order Annexure A-5 and still allowed to work in the same post.
(ii) the respondents be further directed to grant all consequential and monitory benefits to the applicant on the post of Asstt. Teacher with effect from the date from which the incumbent juniors have been allowed to work on such post.
(iii) Any other relief which may suitable in the facts and circumstances of the case may also be allowed."
From the earlier petition, it is clear that the petitioner was claiming parity along with other persons, who were promoted to the post of Assistant Teachers and the petitioner was also seeking his promotion to the Assistant Teacher and wanted to continue on the said post.
This Court in paragraph 4 of the order dated 8-1-2008, held that the District Organizer was not competent to issue an order directing the petitioner and other persons to work in the pay scale of Rs.545-925 for discharging the duties of LDT and secondly, selection of the Teachers / Assistant Teachers could not have been made by him. However, the contention of the petitioner for his consideration along with the other co-employees was accepted and the following directions were given.
"(6) However, there is some substance in the prayer of the petitioner for his consideration along with other co-employees. Accordingly, this petition is disposed of with a direction that the petitioner shall be entitled to be considered for the benefits in accordance with law which may be conferred upon other similarly situated co-employees."
Thus, it is clear that the direction was to consider the case of the petitioner in the light of the benefit which was granted to similarly situated co-employees but this Court had already held that the petitioner was not properly appointed on the post of LDT.
Be that whatever it may.
The petitioner was sleeping over his right and woke up only in the year 2020. During this long period of 12 years, much water must have flown. It is not the case of the petitioner that he could not gather the knowledge of the order passed by this Court on 08.01.2008 in spite of reasonable diligence, therefore, this Court is of the considered opinion that the provision of Section 17 of the Limitation Act does not apply. Although there is no limitation for filing the petition under Article 215 of the Constitution of India, but in the light of the period of limitation of one year as provided under the Contempt of Courts Act coupled with the fact that much water must has flown during the last 12 years as well as the fact that this Court had also come to the conclusion that the petitioner was wrongly asked to work on the post of LDT by the District Organizer, who had no jurisdiction to do so and the petitioner has failed to avail the liberty which was granted to him in the year 2008, no case is made out for entertaining this contempt petition.
Accordingly, this petition fails and is hereby dismissed.