WP 8364.11
Writ Petition No. 8364 of 2011
05-07-2011
Shri R. S. Mourya, learned counsel for the
petitioner.
Heard on admission.
The petitioner by way of present petition under
Article 226 of the Constitution of India seeks quashment
of alleged oral order dated 03-08-1993; whereby, as per
the petitioner, he has been removed from service.
The case of the petitioner is that by order dated
26-09-1992 he was appointed as Constable and posted in
Eighth Battalion, Chhindwara, district-Chhindwara. It is
urged that while in service he availed the leave between
04-06-1993 to 08-06-1993 because of the death of his
father. Thereafter because of his depleting health he
could not join the duties. It is urged that subsequently in
the year 2010 when he approached the authorities for
taking him back in service, no action has been taken. It is
accordingly urged that the oral order of termination
passed on 03-08-1993 be set aside and respondents be
directed to reinstate the petitioner in service.
After hearing the learned counsel for the petitioner
this Court is of considered opinion that the petitioner is
not entitled for the relief as sought. The order dated
26-09-1992 whereby the petitioner was appointed has not
been brought on record as would have indicated the
WP 8364.11
nature of appointment to ascertain as to whether the
petitioner was taken as probationer. There is no material
also on record to show that between 1993 when he
availed the leave till 19-11-2010 when a notice under
section 80 of the Code of Civil Procedure was issued by
his counsel, any efforts were made by the petitioner to
ascertain his status with the respondents.
Mandamus cannot be issued at the instance of the
petitioner for setting aside an order not in existence.
Instead it appears that the petitioner voluntarily
abandoned the service and, therefore, he did not take
interest for more than 17 years from 1993 to 2010.
In view whereof, the petition since suffers from
latches, no relief can be granted.
In the result the petition fails and is hereby
dismissed.
(SANJAY YADAV)
sc JUDGE