DR. MRS. MALTI ROHATGI Vs. THE STATE OF BIHAR & OTHERS

JUDGEMENT

(1.) A difference of opinion betwixt the learned Judges constituting the Division Bench has necessitated this reference. Since the divergence of Viewe extended to all points of fact and (as stands noticed by them in their order no. 13 dated the 20th of February, 1984), the Hon,ble Judges did not deem it necessary to formulate the differences specifically. The facts stand already recounted in considerable detail in both of the exhaustive as separately recorded judgments. Nevertheless, to maintain the homogeneity of this judgment, it becomes necessary to give the factual matrix thereof. These have been marshalled in so admirable a manner by Uday Sinha, J., that the recapitulation thereof can not be improved upon. Even at some risk of plagiarism I would wish to virtually quote them verbatim: -

(2.) Ere one comes to other issues, the threshold question forcibly pressed before the Division Bench on behalf of the respondent State was one of cross and unexplained laches of more than a decade in approaching the writ Court and thus going to the very root of the matter of entertaining the same in its discretionary jurisdiction. On behalf of the respondent State the learned Advocate General on the basis of categoric pleadings on the point had taken the stand that the petitioner had been squarely and personally communicated the government's order (Annexure A) of the year 1973 through a peon and in token of the receipt of the letter she had herself signed the Peon Book. Equally she had been served by the Department of Health with the same. Thus she had the clearest knowledge of the adverse order against her but she slept over the matter for more than a decade. On this preliminary ground she would be disentitled to the giant of relief in the writ jurisdiction apart from merits. Faced with this stand the writ petitioner had hesitantly and evasively sought to deny the categoric claim of the respondent State with regard to the service and receipt of the communication (annexure A). The parties squarely joined issue on this crucial question.

(3.) Sanyal, J. did not accept the stand of the petitioner that she had no notice of the impugned order. Indeed upon the state of the pleadings it was impossible to arrive at such a conclusion. However, he recorded a somewhat hesitant finding in these terms: