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Case Number

Civil Writ Jurisdiction Case No. 3668 of 1983

Judges

S.S Sandhawalia, C.J On difference of opinion between Uday Sinha
S.B Sanyal, JJ.

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Smart Summary

Structured Summary of the Opinion (S.S. Sandhawalia, C.J.)

Factual and Procedural Background

This reference arose because a Division Bench of the High Court recorded a difference of opinion between its learned Judges on all material points of fact and law. The dispute centers on a writ petition filed by a woman (the petitioner), seeking a writ of mandamus to direct respondents to correct her date of birth in the Civil List of the Appointment Department so that it accords with a Health Department notification of 13.2.1971 which corrected her date of birth to 25.8.1927 (having earlier been recorded as 25.8.1925).

The factual matrix (largely quoted from Uday Sinha, J.'s judgment) describes the petitioner’s education and early declarations of birth date, her service in Bihar State Medical Service, a 1971 correction of her age by notification (giving her two extra years of tenure), and then a 1973 Government policy decision directing that dates of birth be in accordance with matriculation certificates which led to cancellation of the 1971 correction and restoration of the earlier date (25.8.1925). The petitioner did not challenge the 1973 decision until 1982–1983, when correspondence and requests for production of matriculation evidence followed, culminating in the present writ petition. The Division Bench disagreed on key factual findings (notably on whether the 1973 order had been communicated to the petitioner and whether delay precluded relief), prompting this reference.

Legal Issues Presented

Whether the writ petitioner has been guilty of gross and unexplained laches (delay of more than a decade) so as to disentitle her to relief in the writ jurisdiction.
Whether the impugned 1973 Government order (restoring the date of birth to that on the matriculation certificate) was communicated to the petitioner.
Whether alleged violation of principles of natural justice in the 1973 decision renders that order void such that delay becomes irrelevant.
On the merits, whether the 1971 alteration of the petitioner’s age was improper and whether the subsequent administrative steps (including the 1982 notice) cured any earlier procedural defects.

Arguments of the Parties

Respondent State (as advanced by the Advocate General)

The petitioner had actual notice of the 1973 adverse order: the Government's order (Annexure A) was personally delivered by a peon at P.M.C.H., and the petitioner signed the peon book in token of receipt; this delivery was corroborated by departmental witnesses and the peon book entry.
The petitioner slept over her rights for more than a decade after having been informed; such gross, unexplained laches disentitles her to relief in the discretionary writ jurisdiction irrespective of merits.
The Civil List was amended in accordance with the impugned decision and the change was published in the Official Gazette, further indicating public and formal communication of the decision.

Petitioner

Denial (hesitant/evasive in the Court's characterization) of having received the 1973 communication; contested that Annexure A was communicated to her.
Contended that principles of natural justice had been violated in connection with the 1973 decision and that, as a result, the order was a nullity — implying that delay should not prejudice her claim.
Relied on precedents (including Ramchandra Shankar Deodbar, Kiran Singh, Nawabkhan Abbaskhan) to support arguments about natural justice and consequences of procedural defects.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bisseswar Poddar v. Nabadwip Chandra Poddar, AIR 1961 Calcutta 300	Permissibility of a Judge visually comparing disputed signatures with admitted signatures (no absolute bar without expert).	The Court relied on this authority to support Uday Sinha, J.'s use of signature comparison (comparing the vakalatnama signature with entries) as a legitimate part of factual assessment.
Bhupendra Narain Mandal v. Ek Narain Lal Das, AIR 1965 Patna 332	Similar authority for visual comparison of handwriting/signatures by a Judge.	Used alongside Bisseswar Poddar to validate the trial Judge's reliance on handwriting comparison when assessing the peon book and despatch register entries.
Ravindra Nath Bose v. Union of India, AIR 1970 SC 470	Firm principle that a petitioner approaching a Writ Court after inordinate and unexplained delay is not entitled to relief.	Fundamental precedent relied upon to hold that the petitioner's long delay (over ten years) disentitled her to relief in the writ jurisdiction.
Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898	Affirmation of the principle in Ravindra Nath Bose regarding denial of relief after inordinate delay.	Cited to show the Supreme Court's consistent affirmation of the no-relief-after-delay rule; used to reinforce the laches-based conclusion.
Jagdish Narain Maltiar v. The State of Bihar, AIR 1973 SC 1343	Support for dismissing petitions where delay (three years in that case) was the primal ground for dismissal.	Relied upon to demonstrate the Court's consistent approach of denying relief where there has been significant delay without reasonable explanation.
M.K. Krishnaswamy v. The Union of India, AIR 1973 SC 1168	Categoric observations consistent with the line that delay may bar relief in writ jurisdiction.	Referred to as part of the consistent jurisprudence supporting denial of relief for inordinate delay.
Ramchandra Shankar Deodbar v. The State of Maharashtra, AIR 1974 SC 259	Examined in context by the petitioner as supporting his position on delay/natural justice; the Court noted it did not deviate from the existing line of authorities.	The Court analyzed it and concluded that it did not undermine the established rule; it was distinguished on its facts (prompt action when cause of action arose and ongoing challenge to procedure).
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340	Case cited by petitioner regarding consequences of procedural defects (but concerned territorial/pecuniary jurisdiction issues).	The Court held it was distinguishable and of limited relevance to the present administrative/service context.
Nawabkhan Abbaskhan v. State of Gujarat, AIR 1974 SC 1471	Observation that an order in violation of natural justice is void "in the limited sense" of being liable to avoidance with retroactive effect.	Used to demonstrate that even where natural justice is breached, the remedy and its consequences are not appropriately read as automatically obliterating delay as a bar; the Court found the authority not to support the petitioner's broad contention.

Court's Reasoning and Analysis

The Court first noted the procedural posture: a reference due to a Division Bench split on facts and law. It then adopted and relied extensively on the factual recitation and analysis in Uday Sinha, J.'s judgment, which was treated as accurate and comprehensive.

The Court identified a threshold, determinative issue: whether the petitioner was guilty of gross and unexplained laches in failing to challenge the 1973 decision for over ten years. The Advocate General maintained that the petitioner had actual notice of Annexure A (1973 order) — supported by affidavits of departmental employees (a peon and a routine clerk) and by an entry in the peon book; Uday Sinha, J. accepted those witnesses as credible and found the petitioner had signed in token of receipt. Sanyal, J. had been less certain and recorded that it would be unsafe to hold establishment of communication beyond doubt; however, the Chief Justice agreed with Uday Sinha, J. after considering the pleadings and the signature comparison performed by the learned Judge (comparing the vakalatnama signature with the disputed entries).

The Court then turned to the legal effect of delay. It rejected Sanyal, J.'s view that an alleged violation of natural justice in 1973 made the delay irrelevant. The Court reasoned that the long line of Supreme Court precedents establishes that inordinate and unexplained delay disentitles a litigant from relief in the writ jurisdiction; the Court cited Ravindra Nath Bose, Tilokchand Motichand, Jagdish Narain Maltiar, M.K. Krishnaswamy and related authorities to show consistency of that principle. The Court held that mere allegation of breach of natural justice does not automatically permit a petitioner to approach the Court after an inordinate delay without explanation.

On the merits (as addressed by Uday Sinha, J. and expressly endorsed by the Chief Justice), the Judge found that:

The 1971 alteration of the petitioner’s age was "patently unjust and improper".
The State had power to adopt a policy (1973 decision) to align dates of birth with matriculation certificates, and that policy decision was validly communicated to the petitioner.
There were adequate materials to show the petitioner was aware by 1973 and certainly by 1980 that Annexure-1 had been cancelled and her date restored to 25.8.1925.
Any technical defect in the 1973 re-correction was addressed in 1982 when the Government issued a notice (Annexure-3) calling on the petitioner to produce materials; thus rules of natural justice, if not complied with in 1973, were complied with by the 1982 notice.
There was no contravention of Articles 14 and 16 of the Constitution as pleaded.

The Court also addressed a subsidiary procedural point raised by the petitioner concerning failure to specifically pray for quashing Annexures A and B; it observed that the rejoinder filed on 30.8.1983 did contain a specific prayer to quash both annexures, but that point was ultimately academic because the petition failed on the primary ground of gross laches and lack of merit on the substance.

Holding and Implications

Holding: The writ petition is dismissed. The Court found no merit in the application and ordered dismissal with costs.

Implications:

The direct effect is that the petitioner's challenge failed and she was not granted the writ of mandamus to change her date of birth in the Civil List; the administrative decisions restoring the earlier date and prompting her superannuation stood in accordance with the Court's findings.
The Court reaffirmed the established principle (as evidenced by cited Supreme Court authorities) that inordinate and unexplained delay in invoking writ jurisdiction ordinarily disentitles a litigant to relief — and that an alleged breach of natural justice does not necessarily obviate the relevance of such delay.
The opinion did not purport to lay down a novel principle of law; it applied and endorsed existing precedent and therefore does not present a departure or new precedent beyond applying settled jurisprudence on laches, communication of orders, signature comparison as fact-finding, and the consequences of subsequent administrative notice (Annexure-3) in addressing procedural fairness.

End of summary — based exclusively on the contents of the provided opinion.

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Dr. Mrs. Malti Rohatgi v. The State Of Bihar & Others

S.S Sandhawalia, C.J:— A difference of opinion betwixt the learned Judges constituting the Division Bench has necessitated this reference. Since the divergence of view 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.

2. 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:—

“The petitioner has moved this Court for issuance of a writ of mandamus commanding the respondents to correct the date of birth of the petitioner in the Civil List of the Appointment Department so as to accord with the correction in the date of birth of the petitioner corrected by Health Department Notification No. 701(2) 2M 3-20386/69 dated 13.2.1971 and from disturbing the service of the petitioner. The petitioner has spent her whole life in metropolitan cities. She is not a rustic illiterate Indian woman who may not know her age. According to her own averments, she started her schooling from Girls' Junior High School, Kanpur. Thereafter, she shifted her studies to Delhi where she joined Indraprastha Hindu Girls' High School, declaring her date of birth as 25.8.1925 She passed matriculation examination from the afore-said High School. Later she joined Lady Hardinge Medical College, New Delhi. There also her date of birth remained 25.8.1925 She obtained M.B.B.S degree in 1949 from that College. Thereafter, she joined Bihar State Medical Service in 1952. Her own declaration at the time of her appointment was that her date of birth was 25.8.1925 In 1962 she obtained M.S (Obstetrics and Gynaecology) degree from Bihar University. In 1969 it dawned upon her that 25.8.1925 as har date of birth recorded in the matriculation certificate and subsequent similar declarations in her own hand pen were wrong. The petitioner has not enlightened us how she realised that the date of birth mentioned in the matriculation cartificate was wrong. Thus in 1969 she filed a representation that the date of birth recorded in her service book be corrected as 25.8.1925 The petitioner has not enlightened us grounds and materials on which she filed the representation for correction of her date of birth nor have we been told in what circumstances how and for what reasons the application was entertained more than ten years after her appointment. That has been withheld from us. I have great difficulty in accepting that the petitioner is not possessed of a copy of the representation filed by her in 1971. It is, however, useless to probe into those aspects because the files relating to her date of birth in the Secretariat have disappeared. To cut matters short, her representation was accepted and her date of birth was corrected from ??? to 25.8.1927 by Notification No. 701(2)/2M3-20386/69 dated 13.2.971 addressed to Accountant General, Bihar. The petitioner thus got two years extra lease of tenure on the teaching staff of Patna Medical College.

The aforesaid extra lease in her tenure probably trod on the toes of Dr. D. Singh and Dr. Anmola Sinha, teachers in the College. They also, therefore, moved the State Government for the same favor by correction/alteration of their date of birth as well by two years. Government probably found that the malady of correction of date of birth was getting contagious/infectious and, therefore, took a policy decision by Annexure G dated 10.9.1973 addressed to Accountant General, Bihar that the date of birth shall be in accordance with the date of birth recorded in matriculation certificate. In terms of this policy decision the correction of date of birth of the petitioner done previously was cancelled. Her date of birth was again restored to 25.8.1925 Curiously this file has also become traceless from the Secretariat. The representations of Dr. D. Singh and Dr. Anmola Sinha were thus rejected. According to the State, the second alteration in the age of the petitioner, i.e back to 1925 was communicated to her and matters stood there. No step was taken by the petitioner to agitate the question of her date of birth after 1973 till 1983 not did she ever challenge the correctness or propriety of Government decision contained in Annexure-A.

The issue of the petitioner's date of birth again became a live issue in 1982. By letter dated 8.12.82 (Annexure 3) Deputy Director, Health Services called upon the petitioner to affirm her date of birth and to file matriculation certificate. In reply thereto the petitioner wrote to the Deputy Director informing that her date of birth had been corrected in 1971 from 25.8.1925 to 25.8.1927 Annexure-A was probably sent to the Health Department on 14.12.1982 In reply thereto the Deputy Secretary, Health by Annexure-6 dated 24.2.1983 again called upon the petitioner to file matriculation certificate along with photo state copy of the matriculation certificate. By Annexure-6(1) the petitioner expressed her inability to produce any photostat copy of her matriculation certificate, but again sent a copy thereof. By Annexure-7 dated 2.6.1983 the petitioner pressed her claim for entry of 25.8.1927 as her date of birth in her service book. The State Government considered the question of correct date of birth of the petitioner and by order contained in Annexure B referred to Accountant General, Bihar, the State Government decided that the petitioner's date of birth shall be in accordance with the matriculation certificate and there was no reason to alter it and on that basis she would superannuate on 31.8.1983 A copy of this letter was sent to the petitioner as well. That led to the filing of the present application. No prayer has been made for quashing Annexure A or B. In accordance with Government decision contained in Annexures A and B the petitioner superannuated on 31.8.1983”

3. Ere one comes to other issues, the threshold question forcibly pressed before the Division Bench on behalf of the respondent State was one of gross 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 grant 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.

4. 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:

“For these reasons it will be unsafe to hold that the respondents have been able to establish beyond doubt that Annexure ‘A’, the decision of the year 1973, was communicated to the petitioner.”

5. However, Uday Sinha, J., examined the matter in greater detail and with incisive depth. He accepted the sworn testimony of Bhola Paswan, a peon in the Health Department, who swore the affidavit that he duly delivered the impugned order to the writ petitioner in the premises of P.M.C.H and she herself received the letter addressed to her and in token thereof she put her signature in the peon book in his presence. He also accepted the statement of Hari Narain Ram, the routine clerk (dispatcher) in the Department of Health, who stated on oath that Annexure-A was sent to the petitioner which was received personally by her and in token of the receipt she put her signature with date. He found that these employees had no are of their own to grind nor any animus against the petitioner, whilst she herself was deeply interested to deny the receipt thereof. He summed up as under:

“In my concluded view, the letter mentioned at serial 23 bearing her name was sent to her and was received by her. Her denial in this behalf is rather unfortunate. This gives an inkling into the petitioner's metal.”

6. Before me the learned Advocate General more than amply buttressed the aforesaid finding, if indeed it was at all necessary, by pin-pointing the unequivocal and categorical pleadings filed on behalf of the respondent State. Though the pleadings categorically stated that the signature in the peon book was in the writ petitioner's own handwriting, she in her affidavit in reply tried to evade the issue by refusing to aver a specific denial. In her affidavit there is plain attempt to skirt the issue of her signature in the peon book and she rested herself content with vague denials that letter no. 1999 (2) had no bearing on the petitioner's date of birth etc. Along with the mass of other evidence on the point Uday Sinha, J. had further reassured himself by comparing the signature of the writ petitioner on the vakalatnama with the disputed signatures in the despatch register and the peon book. He found that her characteristic style of writing ‘R’ in Rohatgi’ is exactly similar therein.

7. Mr. Basudeo Prasad had attempted to vainly assail this reassurance by the learned Judge with other basic testimony on the ground that this could not be done except by calling a handwriting expert as a witness. It is well settled that in conjunction with other testimony there is no legal bar to the Judge using his own eyes to compare a disputed signature with admitted signatures. Reference in this connection may be instructively made to the Division Bench judgment in Bisseswar Poddar v. Nabadwip Chandra Poddar (AIR 1961 Calcutta 300) and Bhupendra Narain Mandal v. Ek Narain Lal Das (AIR 1965 Patna 332).

8. The learned Advocate General then highlighted the fact that consequent to the impugned decision of the Government the Civil List was duly amended and the matter given the fullest publicity by being published in the Official Gazette. In the totality of the circumstances to hold that the petitioner was unaware of the order (annexure A) in 1973 seems wholly untenable. I would, therefore, unhesitatingly agree entirely with the conclusion arrived at on this aspect by Uday Sinha, J.

9. However, even assuming that the writ petitioner had been duly communicated with the State's decision way back in 1973, Sanyal, J., opined that because the principles of natural justice were alleged to be violated, the delay of more than a decade in approaching the writ Court was irrelevant to the issue. With the greatest respect to him, I am unable to subscribe to this line of reasoning because it seems to run against the very grist of a long line of decisions of the final Court with regard to the gross and unexplained laches in approaching the writ Court and the impropriety of its entertaining patently state causes. With respect to Sanyal, J., herein also I am inclined to agree entirely with the forthright enunciation of his view by Uday Sinha, J.

10. In a field so well trodden, it seems unnecessary to multiply authorities and it suffices to refer to only a few basic judgments of the final Court. In Ravindra Nath Bose v. Union of India (AIR 1970 Supreme Court 470) it was held in unequivocal terms that no relief can be given to a petitioner who without any reasonable explanation, approaches the Writ Court after inordinate delay. A reconsideration of this case was later sought but the ratio was resoundingly affirmed in Tilokchand Motichand v. H.B Munshi (AIR 1970 Supreme Court 898). Again in Jagdish Narain Maltiar v. The State of Bihar (AIR 1973 Supreme Court 1343) their lordships upheld the judgment of the Patna High Court which had dismissed the petitioner's application on the primal ground that he had approached the Writ Court after a delay of 3 years. Equally categoric are the observations in M.K Krishnaswamy v. The Union of India (AIR 1973 Supreme Court 1168). The aforesaid view has thereafter been consistently adhered to by the Supreme Court.

11. In fairness to Mr. Basudeva Prasad, the learned counsel for the petitioner, one must notice his reliance on Ramchandra Shankar Deodbar v. The State of Maharashtra (AIR 1974 Supreme Court 259). However, I am unable to read that judgment as in any way deviating from the consistent line of precedent noticed above. In fact, exprese reference to Tilokchand Motichand's and Ravindra Nath Bose's cases was made approvingly therein. It was in terms held that the petitioners therein did not lose any time in filing the petition when they were adversely affected and the cause of action arose qua them. It was further noticed that the challenge therein was to the validity of the procedure for making promotion which was not a thing of the past but was still being continued and followed by the State Government, the constitutionality of which was under challenge. It was on these grounds that it was held that there was no delay or laches in the particular case.

12. In order to buttress his alleged stand that the impugned order was a nullity because of the alleged violation of the principles of natural justice, Mr. Basudeva Prasad placed reliance on Kiran Singh v. Chaman Paswan (AIR 1954 Supreme Court 340) and Nawabkhan Abbaskhan v. State Of Gujarat (AIR 1974 Supreme Court 1471). Both the judgments, however, are distinguishable. In Kiran Sing's case the issues raised were with regard to the territorial or the pecuniary jurisdiction of a court and its effect on the decree. Consequently, the observations made in this context, to my mind, have hardly any relevance in the present situation. Similarly, Nawabkhan Abbaskhan's case was a criminal matter where the order of externment and the consequential prosecution were put in issue. It is plain that the examination of the issue in the context of the criminal law would not, strictu sensu, be attracted in the present case. In fact, the judgment far from helping the writ petitioner seems to run counter to her stand that the violation of the principles of natural justice would make the order void and thus a nullity. It has been observed therein as under:

“In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by court with retroactive force.”

13. In the light of the long line of binding precedent noticed earlier, it seems to me as wholly untenable to hold that merely because the principles of natural justice have been violated, the writ petitioner would be entitled to approach the Court after an inordinate and unexplained delay of more than ten years. With the deepest deference, therefore, I am unable to agree on this aspect with S.B Sanyal, J. and would wholly endorse the stand of Uday Sinha, J. Once that is so, on this ground of gross laches alone all further considerations of merits Would indeed be precluded.

14. However, since the learned Judges constituting the Division Bench have opined on the merits of the controversy as well, I would wish to endorse and affirm the findings of Uday Sinha, J., which have been admirably summarised by him as under:

“46. My concluded findings are that the order of alteration of the petitioner's age in 1971 was patently unjust and improper. The State Government had the power to take a policy decision and clear the cob-web in regard to the age of the petitioner accordingly. The order passed in 1973 was communicated to her. There are adequate materials to show that she knew in 1973 and certainly in 1980 much before her date of superannuation that Government had cancelled Annexure-1 and that her date of birth had been restored as 25.8.1925 The petitioner has moved this Court with inordinate delay, ten years after the passing of Annexure A. This by itself is sufficient to throw out her application the technical defect, if any, in re-correcting her date of birth was removed by issuance of Annexure-3 by which she was called upon to produce all materials in support of her stand that her real date of birth was ??? and not 25.8.1925 Rules of natural justice even if not complied in 1973 were complied in 1982 by issuance of Anrexure-3. It is idle to contend that Government had no jurisdiction in 1982 to issue notice in regard to the correct age of the petitioner. The petitioner, therefore has no case for issuance of a writ as prayed for. There was no contravention of Articles 14 and 16 of the Constitution.”

15. Before parting with this judgment, it must be noticed that Mr. Basudeva Prasad had also assailed the ancillary finding of Uday Sinha, J. (in paragraph 47) that the writ petition must be rejected on the added ground that no prayer for specifically quashing annexures A and B had been made. Learned counsel pointed out that annexure B had come into existence during the pendency of the writ petition and, therefore, there could be no question of assailing the same at the original stage of the filing of the writ petition. My attention was drawn to the rejoinder to the counter affidavit of the respondents filed by the petitioner on the 30th of August, 1983 where in paragraphs 8 and 9 a specific prayer for quashing both annexures A and B had been made. It would appear that these leading were not pointedly brought to the notice of the Division Bench. With respect, therefore, Uday Sinha, J's, observation for the rejection of the writ petition on this added but technical ground is, perhaps, not sustainable. However, in view of the failure of the writ petition even on the basic and primal grounds on which it was rested, this issue would no longer affect the result and is thus rendered academic.

16. In the result, I find no merit in this application and it is hereby dismissed with costs.

Dr. Mrs. Malti Rohatgi v. The State Of Bihar & Others

Structured Summary of the Opinion (S.S. Sandhawalia, C.J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent State (as advanced by the Advocate General)

Petitioner

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Dr. Mrs. Malti Rohatgi v. The State Of Bihar & Others

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