- (1.) D. K. Seth, J. The case of the petitioner, as made out in the Writ petition, inter alia, is that the petitioner's appointment as lecturer on 24-2-1967 in Civil Engineering in D. N. Polytechnic College, Meerut, was approved by the Staff Selection Committee on 27-7-19t> 7 and was confirmed by an order dated 23-7- 1969 with effect from 26-7-1968. On 4-10-1973 the petitioner was promoted as Senior Lecturer. On account of long leave the petitioner's service was terminated by the Committee of Management of the College on 24-12-1982 without prior approval, as contemplated under Section 22-G (l) of U. P. Praydhic Shiksha Adhiniyam, 1962 (herein after referred to as 1992 Adhiniyam ). The petitioner's representation dated 10-2-1983 was rejected by the Principal/secretary through letter dated 21-2-1983 on the ground that his services stood terminated with effect from 21-1-1983. Thereupon the petitioner filed an appeal before the Director, Technical Education on 26-5-1983. On 30-5-1984 the petitioner served a notice through his Advocate, demanding re-instatement within fifteen days with a threat to legal action, in default. By letter dated 28-6-1984 the Committee of Management replied to the said letter affirming their stand. The Director of Technical Education on 4-11-1987 referred the case to the Committee of Management. The Managing Committee agreed to review on 28-12-1987. Whereupon the Principal asked the petitioner to submit a representation on 16-7-1988. On 19-7-1938 the petitioner sent his representation to the Committee of Management which rejected the same on 23-3-1989. Being aggrieved the petitioner has moved the present writ petition on 22-1-1990.
(2.) SRI B. D. Mandhyan, learned counsel appearing on behalf of the petitioner contends that in view of Section 22-G (1) of U. P. Pradhik Shiksha Adhiniyam, 1962, the services of the petitioner can not be termina ted without prior approval of the Director. According to him, in the present case, the petitioner, who was granted long leave and did not join his duties, despite expiry of the sanctioned leave, is in effect over staying of the leave, which is a misconduct. According to him in such case the services can be terminated only after notice to show cause and that too after prior approval obtained from the Director. The alleged abandonment of service as pleaded by the Committee of Management in its resolution dated 19-12-1982 (Annexure 5 to the writ petition) is not abandonment, but a termination of service. Sri Vishnu Sahai, learned counsel appearing on behalf on the respondent, on the other hand, contends that it was not a case of termina tion but a case of abandonment of service and in such case Section 22-G (l) has no manner of application. According to him Section 22-G (1) of the Act applies only when the service is terminated. In support of his conten tion he elaborated, relying on Annexure-6 to the writ petition, that the petitioner was on long leave, on account whereof all his leave due, were exhausted and he was on leave without pay with effect from 17-7-1981 till 16-7-1982. Despite the letter dated 30-9-1982 to join his duties lates by 15-10-1982, the petitioner failed to do so. Ultimately, by resolution dated 19-12-1982, the petitioner was asked to join his duties latest by 27-1-1983, failing which the petitioner would be deemed to have relinquish ed the post with effect from 28-1-1983. But the petitioner did not join his duties on 27-1-1983. On the other hand he had addressed a letter op 10-2- 1983 to the Committee of Management, which was replied by means of letter dated 23-2-1983 that on account of relinquishment of the post by the petitioner, he was no more in service with effect from 23- 1-1 83 Relying on Annexure-7 to the writ petition, which is a letter addressed by the petitioner to the Director, Technical Education, which the petitioner con tended to be a Memorandum of appeal, to the Director, Technical Educa tion, Sri Sahai, points out that in the said letter the petitioner had admitted that on account of his father's death he was looking after his family business and running a factory, manufacturing Surgical appliances and, therefore, he required long leave of two years, without pay. In the said letter he had also admitted that he was going out of Maorut and he would sent request for extension of leave within a next few days. Accord ingly, he had made a request vide letter dated 10-2- 1983 sent by registered post because he was required to attend some legal cases on behalf of the factory at Ahmedabad. Therefore, he may be permitted to join on 11-3-19s3. While concluding the said letter the petitioner had expressed his hope that he would be sanctioned leave upto 30-6-1983 and during the next session he may be able to resume his duties and if it would not be possible to join on 1- 7-1983, he would make further request for extension of leave and would abide by the orders given by the Director, Technical Education. Relying on this statement Sri Sahai, contended that the petitioner was engaged in his business and was not interested in service and had, infact, abandonned his service. Sri Sahai further contended that by letter dated 30-5-1984, served through his lawyer he demanded re- instatement within fifteen days from the date of receipt of the said letter, failing which he take legal action. The said letter was duly replied by the Chief Medical Officer and confirmed that the petitioner has abandoned his service. Sri Sahai also relied on Annexure-10 to the writ petition, by which the petitioner had addressed the Director of Technical Education, requesting him to refer his case to the Chairman, D. N. Polytechnic, Meerut for his review, in order to avoid litigation. Relying on these facts Sri Sahai contends that the conduct of the petitioner shows that he had, infact, abandoned his service, which is not a termination, within the meaning of Section 22-G (l) of the said Act, requiring prior approval. According to him the abandoment of service, in the facts and circumstances of the case does not come within the ambit of Section 22-G (1) of the Act. Sri Sahai, then contends that the writ petition is not maintain able because of the delay in moving the same. Relying on the dates given, he contends that the petitioner is guilty of inordinate delay and latches in invoking enquiry jurisdiction and has not shown bona fide. Inasmuch as, according to him he was more interested in carrying on the business than service. He is interested only to the benefit of service without performing the duties while gainfully employed in business. The alleged appeal is not an appeal. Inasmuch as there is no scope for pre ferring any appeal or making any representation under the Statute. There fore, the time spent on it does not help him, in any manner. Then again the petitioner himself requested the Director to refer the matter for review by the Chairman of the College and thereby submitted to the jurisdiction of the college and obtained order on review, which he can no more challenge, according to him this remedy is outside the scope of Statute. Therefore, the delay of almost seven years cannot be said to have been explained and justified and, as such, the writ petition is liable to be dis missed. In support of his contention here lies on the decision in the case of Jagdish Narayad Maktiar v, The State of Bihar and others, AIR 1973 SC 1343. Wherein it was held that a person pursuing a remedy which was not duly appointed under the law puts in peril a right of high value and significance and by his conduct has disabled the High Court from exercising its extraordinary powers in his favour, in the said case the writ petition was preferred almost after eight years which was not entertained by the High Court on the ground of delay.
(3.) WE propose to take up the last contention of Mr. Sahai as to the maintainability of the petition on the ground of delay and latches first. It is by now an established principle of law as has been laid down through various decisions of the Supreme Court and the High Courts that though there is no specific period of limitation, the High Court may refuse to exercise its extraordinary jurisdiction under Article 226 of the Constitu tion of India, where the petitioner is guilty of latches or undue delay for which he cannot offer satisfactory explanation. Right from the case of Union of India v. Verma T. R. , AIR 1957 SC 882, the view taken by the Supreme Court has laid down that extraordinary power is discretionary and such discretion is exercised where the court finds that the person seeking to invoke the extraordinary jurisdiction is not guilty of latches or undue delay. The court would intervene when it is satisfied that there is no latches or such latches are not due to the fault of the petitioner and that the delay is properly explained. Such explanation may not be near or similar to the explanation as required to be explained in an application under Section 5 of the Limitation Act but a possible explanation accept able at the discretion of the court. The courts have been of consensus opinion that pursuit of extralegal remedy such as departmental representa tion or correspondence in the nature of an appeal for mercy are not grounds for condoning delay unless such appeal or representation is provi ded in the Statute-Raja Lakshmaiah Setty v. State of Mysore, AIR 1967 SC 993 at page 997 ; Jagdish Narayan Maltiar, (supra) Gian Sing Mann v. High Court of Punjab and Haryana, AIR I960 SC 1894 (Para 3 ). Delay or latches have not been held to be absolute bar. Where it involves in fringement of fundamental rights distinct from civil rights the doctrine leading to interfere as laid down in the case of Rochhunni v. State of Madras, AIR 1959 SC 725 ; Tata Iron and Steel Company v. Sarkar S. R. , AIR I9ol SC 65 (68); Kharak Singh v. State of U. P. , AIR 1963 SC 1925, was weaken ed seriously by latter decisions, viz. , Tilok Chand Motichand v. Com missioner of Sales Tax, AIR 1970 SC 898 ; Rabindra Nath Base v. Union of India, AIR 1970 SC 470 ; Amritlal Barry v. Collector of Central Excise, Central Revenue. AIR 1975 SC 538 (Para-16 ). The Courts refused to inter fere even when there was invasion of fundamental rights on the ground of laches acquiescence or delay on the part of the petitioner. Making of repeated representation after the rejection does not exonerate delay in moving the court, State of Orissa v. Pyarimohan Samantary, AIR 19/6 SC 2617 (Para 6} and State of Orissa v, Arun Kumar, AIR 1976 SC 1639 (Para 14 ). Perusing an ill conceived remedy is not a proper explanation for the delay. The question has been left to the discretion of the Court, Ram Chandra Shanker Deodhar v. The State of Maharashtra, AIR 1974 SC 259 (Para 10 ). No hard and fast rule can be laid down. Each case is to be viewed on the facts and circumstances of each case. The considera tion upon which the High Court refuses, to exercise its discretion in case of delay is not limitation but the matters relating to conduct of parties Dhanyalakshmi Rice Mills v. Commissioner of Civil Suppies, AIR 1976 SC 2243, (Para 26 ). In some cases it has been held that the court may take cognizance of the period of limitation where if the petitioner had brought a suit or the statutory remedy for the same relief it would have been barred by limitation. K. K. Srivastava v. Bhupendra Kumar Jain, AIR 1977 3c 1703. The proper standard hower, seems to be whether in the circumstances of the case the time that has elapsed can be said to be reasonable. Babu Singh v. Union of India, AIR 1979 SC 1713 (Para 11 ). or whether the delay has been explained properly. Arun Kumar Chatterjee v. South Eastern Railway, AIR 1985 SC 482. The reasonableness has to be assessed by the court having regard to 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. Shri Vallabh Glass Works Ltd. v. Union of India, 1984 (3) SCC 362 (Para 9 ).;