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2013 DIGILAW 366 (JK)

State Of J&K v. Ashrat ul Nisa

2013-06-06

Hasnain Massodi, JANAK RAJ KOTWAL

body2013
1. These are three appeals under clause 12 of the Letters Patent Rules, 1999. 2. LPA No.212/2012 is directed against the judgment and order dated 19. 09. 2012 passed by a Id. Single Judge of this Court in SWP No.766/2012. LPA No.208/2012 is directed against the judgment and order dated 26. 03. 2012 passed by a Id. Single Judge in SWP No.554/2012 and LPA No.213/2012 is directed against judgment and order dated 06. 06. 2012 passed by a Id. Single Judge in SWP No. 896/2012. The impugned judgments and order passed in SWP No.766/2012 and SWP No.554/2012 are based upon a common judgment and order dated 6.10.2009 earlier passed by a Id. Single Judge of this Court in SWP Nos.1795/2003, 1863/2003 and 1382/2004 (for short the earlier writs) whereas the impugned judgment and order passed in SWP No.896/2012 is an offshoot of the judgment and order passed in SWP No.554/2012. 3. Heard. We have perused the record. 4. Background facts, which are common to all the three appeals, briefly, are these; 1st. round of litigation. For back the official respondents vide Advertisement Notice No.DAP/J-226 dated 5. 3. 2003 sought candidature of eligible candidates for the posts of Prosecuting Officer in Jammu and Kashmir Police. Selection process was completed. The selection so made came to be challenged by the aggrieved candidates in the earlier writs, which were disposed of by the common judgment and order dated 06. 10. 2009. The judgment and order dated 06.10.2009 rendered by Id. writ Court would show that selection process was challenged by the petitioners on various grounds inter alia that private respondents of those writ petitions did not possess the requisite qualification. Ld. writ Court while disposing of those writ petitions observed inter alia; "the result sheet produced would show that the petitioners have obtained very high marks in the process. Petitioner No.l namely Sheikh Bilal Mohi-ud-din has obtained 63 marks, petitioner No.2 Syed Anwar Ahmed Rizivi has obtained 60 marks and petitioner No. 3 Abdul Aziz Zaindari has obtained 53". "the respondents have acted in a most illegal manner in excluding the petitioners from the process and appointed ineligible candidates on the post". "the appointment of the respondents has been made in the year 2003. They are working on the post for the last 6 years. "the respondents have acted in a most illegal manner in excluding the petitioners from the process and appointed ineligible candidates on the post". "the appointment of the respondents has been made in the year 2003. They are working on the post for the last 6 years. In these circumstances I find it would be very harsh to quash their selection and appointment on present post". 5. Ld. Writ Court, therefore, directed the official respondents that they shall; "consider the appointment of the petitioners also against the posts available and pass appropriate orders in this behalf within a period of six weeks from the date this order is served on the respondents". 6. The direction of the Writ Court, appears, came to be complied with by the official respondents and first round of litigation, thus, came to an end. 2nd. round of litigation. SWP No.766/2012 This writ petition came to be filed by 15 candidates in the year 2012. They (herein private respondents) contended that they had applied for and taken part in the selection process pursuant to Advertisement Notice dated 5/3/2003. They were called for the interview and they had fared well. They are "figuring in the merit list with higher merit than those candidates who have been appointed by the respondents". The respondents while implementing the judgment of Writ Court dated 6.10.2009, were required to offer appointment to them also. However, respondents did not do so and thereby violated their legal, fundamental and constitutional rights. The respondents did not appoint them as Prosecuting Officers, pursuant to judgment dated 6.10.2009 despite various representation in this regard having been submitted by them. They, therefore, sought following relief from the Id. Writ Court; "a- To issue orders of appointment in favour of the petitioners also against the post of prosecuting officer in the same manner, in which orders of appointment have been issued by them in favour of several other candidates, on the basis of judgment of the Hon'ble Court dated 6-10-2009, passed in SWP Nos.1863/2003,1795/2003, 1382/2004 & 554/2012. b- They be also directed to give the benefit of such appointment to the petitioners from the same date, from which said benefits have been given to those, who have been appointed as prosecuting officers in pursuance of the judgment of the Hon'ble Court dated 6-10-2009. b- They be also directed to give the benefit of such appointment to the petitioners from the same date, from which said benefits have been given to those, who have been appointed as prosecuting officers in pursuance of the judgment of the Hon'ble Court dated 6-10-2009. c- The Hon'ble Court may pass any other order or direction which it may deem fit and proper under the facts and circumstances of the case." 7. Ld. Writ Court vide judgment and order dated 19.9.2012, allowed the writ and directed the respondents "to consider extending the same benefit to the petitioner as has been accorded to the writ petitioners of SWP Nos.1795/2003, 1863/2003 and 1382/2004, which were disposed of vide judgment and order dated 06-10-2009. This exercise be completed within a period of three months from the date copy of this judgment and order is served upon them." This judgment and order is challenged in LPA 212/2012. SWP No.554/2012: This writ petition came to be filed by one of the candidates, Nuzhat Un Nisa Koul, in the year 2012 and was disposed of vide judgment and order dated 26. 03. 2012. It seems to have been filed on the sole ground that the petitioner (herein respondent) had secured 55 points in the selection process as against 53 points secured by Abdul Aziz Zaindari, one of the petitioners in the earlier writs, and was, therefore, entitled to appointment pursuant to judgment and order dated 6.10.2009 passed in the earlier writs. Ld. Writ Court ordered in this case that; "operative part of the judgment reproduced hereinabove passed in SWP Nos.1863/2003, 1795/2003 and 1382/2004 shall apply to this case also and this petition stands disposed of in terms of the aforementioned judgment of the Court". This judgment is challenged in LPA 213/2012. SWP No.896/2012 This writ petition simply was an offshoot of the judgment and order passed by Id. writ Court in SWP 554/2012. This came to be filed when official respondents refused appointment to the therein petitioner, Nuzhat-Un-Nisa Koul on the ground that the petitioner has projected her claim after elapse of over 09 years from the date the selection and appointment came to be issued by the Department. The Id. Writ Court disposed of this writ vide judgment and order dated 06. 06. The Id. Writ Court disposed of this writ vide judgment and order dated 06. 06. 2012 thereby setting aside the rejection order and directing the respondents "to proceed in the matter afresh strictly in accordance with the directions contained in the judgment dated 26.03.2012". This judgment and order is challenged in LPA No. 213/2012. 8. Judgments and orders passed in SWP Nos. 766/2012 and 544/2012 have been challenged mainly on the grounds that both the writ petitions suffered from delay and latches, the lowest selected candidate in the open merit category had secured 65 points, whereas petitioners of both the writ petitions (private respondents herein) have secured less than 65 points and that the private respondents cannot be given benefit similar to that given to the petitioners of the earlier writs without having challenged the selection process and secured better merit than the selected candidates. 9. Mr. N.H. Shah, Id. Dy. AG vehemently argued that the Advertisement Notice was issued on 5. 3. 2003 and the selection process came to be concluded and completed in the same year. The first round of litigation came to be commenced in time, whereas the two writ petitions in which the impugned judgment and order have been rendered came to be filed after inordinate delay of more than 9 years and suffer from delay and latches and could not have been allowed. Mr. Shah would submit in this regard that the Hon'ble Writ Court in both the cases have ignored the settled principle of law that time available for invoking writ jurisdiction of High Court is not more than that provided for filing a suit for the similar relief and writs filed after inordinate delay cannot be granted. Had the Hon'ble Single Judge in both the cases taken note of this settled position in law, both the writ petitions would have been dismissed as time barred. He also submitted that the private respondents, having secured less points, cannot claim similar relief which was granted to the petitioners who had approached the Court within time. Mr. Shah argued vehemently that grant of relief to the private respondents at this stage would give rise to a ridiculous situation because all the posts advertised vide notification dt. 5. 3. 2003 had been filled up and the private respondents cannot be appointed against the vacancies accruing after that. In support of his submissions, Mr. Mr. Shah argued vehemently that grant of relief to the private respondents at this stage would give rise to a ridiculous situation because all the posts advertised vide notification dt. 5. 3. 2003 had been filled up and the private respondents cannot be appointed against the vacancies accruing after that. In support of his submissions, Mr. Shah placed reliance on judgments rendered by Hon'ble Supreme Court in S.S. Balu and another v. State of Kerala and others, 2009(2) SCC 479 and Leelawanti & others v. State of Haryana and others' 2012 (1) SCC 66 . 10. Per contra, Mr. M. A. Qayoom, Ld. counsel for the respondents argued that the fundamental right of equality and equal opportunity is neither waived nor defeated on the basis of delay. Ld. counsel would say that the private respondents, cannot be denied treatment at par with that given to the petitioners of earlier round of litigation simply on the ground of delay on their part in approaching the Court. Ld. counsel empathetically sought to explain delay saying that the private respondents were entitled to similar relief as was made available to the petitioners of earlier writs and the official respondents of their own should have extended relief to them by appointing them along with earlier petitioners. However, respondents failed to do so, despite representations by the private respondents, who without wasting any time approached this Court after representation filed by them were not acceded to. Placing reliance on various authorities, ld. counsel sought to project that the principle emphasized by the ld. Add. AG is not a straight jacket and rigid principle and in appropriate cases courts have intervened for doing substantial justice, notwithstanding the delay in approaching the court. In support of his arguments, ld. counsel placed reliance upon judgments rendered in Pt. Gopinath Wali v. State of Jammu & Kashmir, AIR J&K 1958 11, Dr. Jagannath Mishra v. State of Bihar, AIR 1990 Patna 11, Ramchandra Shankar Deodhar and others v. State of Maharashtra and others, AIR 1974 SC 259 and Syed Sharif-ud-Din v. State of J & K another, 1975 JKLR 661 : 2010 (9) JKJ HC-876 (CB). 11. Gopinath Wali v. State of Jammu & Kashmir, AIR J&K 1958 11, Dr. Jagannath Mishra v. State of Bihar, AIR 1990 Patna 11, Ramchandra Shankar Deodhar and others v. State of Maharashtra and others, AIR 1974 SC 259 and Syed Sharif-ud-Din v. State of J & K another, 1975 JKLR 661 : 2010 (9) JKJ HC-876 (CB). 11. By the catena of judgments including those relied upon by the learned counsel for both the sides in this case it is a settled position that as a general rule time limit for filing a writ petition under Article 126 of the Constitution of India (Sec. 103 of the Constitution of Jammu and Kashmir) cannot be more than the time limit prescribed for a civil suit for a similar relief and where there is extraordinary delay in approaching the Court, relief generally should be refused. 12. In State of Madhya Pardesh and anr. v. Bhailal Bhai, AIR 1964 SC 1006 , a five-Judge Constitution Bench of Honble Supreme Court, while emphasizing in para 17 of the judgment that "the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it" is among the several matters which the High Court's rightly take into consideration in exercise of their discretion under Article 226, has authoritatively held in para 21 of the judgment that even though Limitation Act does not apply to writ Petitions under Article 226, maximum period for filing the writ petition shall be equivalent to the maximum period as prescribed for filing suit in civil Court. To understand the principle of law in this regard, relevant extracts of the judgment are reproduced: "17 ....It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the of power to issue writs in the nature of mandamus. Among the several matters which the High Court rightly takes into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it.... It is not easy nor is it desirable to lay down any rule for universal application. Among the several matters which the High Court rightly takes into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it.... It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. 21........Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time with in which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable........" (emphasis supplied)" 13. Law laid down by the Hon'ble Supreme Court in Bhailal Bhai case's (supra) has been followed in catena of judgments till date and one of the latest judgments in this regard rendered by Hon'ble Supreme Court is in Leelawanti and ors. v. State of Haryana and ors. 2012 (1) SCC 66 . 14. Authorities relied upon by the learned respondents' counsel too would not disclose a principle different than stated above. 15. In Pt. Gopi Nath Wali's case, AIR 1958 J&K 11 : 2010 (7) JKJ HC-405 (FB), writ of mandamus and certiorari pursuant to the Cabinet Order dated 12.11.1953 seems to have been filed after a period of more than a year and a half. Hon'ble Full Bench of this Court while accepting that the petitioner should be vigilant in pursuing the extraordinary remedy, however, took note that petitioner has been making representations to the Government and held that delay of a year and a half was not fatal. Finding in this regard is contained in para 13 of the judgment which reads: "13. Hon'ble Full Bench of this Court while accepting that the petitioner should be vigilant in pursuing the extraordinary remedy, however, took note that petitioner has been making representations to the Government and held that delay of a year and a half was not fatal. Finding in this regard is contained in para 13 of the judgment which reads: "13. it is true, that the petitioner should be vigilant in pursuing the extraordinary remedy, which is open to him under the Constitution, but in order to determine whether there has been delay in a particular case, the facts of each case have to be taken into consideration. In this case the petitioner has been making representations to the Government to redress his grievance but he has been unsuccessful and in these circumstances the delay of a year and a half cannot be considered to be fatal to his petition. Moreover, in the absence of the plea that on account of the delay the State has been prejudiced in any manner, mere delay cannot be considered a bar to the entertainment of a petition under S. 103 of Constitution." 16. In Jagan Nath Mishra's case, AIR 1990 Patna 11, High Court of Patna, after referring the authorities to the effect that rule of delay and latches was not a rigid rule, had rejected the objection in this regard in the facts of the given case. 17. In Rama Chandra Shankar Deodhar's case, AIR 1974 SC 259 , Hon'ble Supreme Court while observing that, "rule which says that the court may not inquire into belated and stale claims is not a rule of law, but a rule practice based on sound and proper exercise of discretion, and there is no inviolable rule that, whenever there is delay, the court must necessarily refuse to entertain the petition", had over ruled preliminary objection based on delay and latches in filing the petition. 18. 18. Perusal of judgment rendered by the Full Bench of this Court in Syed Sharief-ud-Din's case, 1975 JKLR 661 , would show that the Court, while emphasizing judicial opinion on one hand that "outside limit cannot exceed the period prescribed by the Limitation Act for bringing a suit for the same relief", has also taken note of judicial opinion on the other hand that "mere delay itself is not a ground for rejection of a writ petition and whether there has been delay and latches in brining it, it has to be considered with reference to the facts of each case". 19. Legal position, thus, emanating from the authorities available and relied upon by the ld. counsel for the parties is that inordinate delay in invoking writ jurisdiction of the High Court is no less important or irrelevant question to be raised for consideration. As a general rule, time limit in this regard is the same as the time prescribed for filing a suit for the similar relief. Delay in approaching the High Court to seek discretionary relief under writ jurisdiction cannot be ignored and unless explained to the satisfaction of the court on sound grounds would disentitle the petitioner of the relief sought. There can be no criteria as to when delay can be said to have been satisfactorily explained and this all will depend upon and differ from case to case. 20. Applying the above principles, we have anxiously considered the question, whether the private respondents had a reasonable justification in approaching this Court at a belated stage after about nine years of the completion of the selection process and are entitled to similar relief as was granted to the petitioners of the earlier litigation. 21. As for as justification for approaching the court at belated stage is concerned, we have found none. As a matter of fact private respondents have not offered to state, much less justify, as to why they had not challenged the selection immediately or any time after completion of the process, if they were aggrieved of the same. 22. 21. As for as justification for approaching the court at belated stage is concerned, we have found none. As a matter of fact private respondents have not offered to state, much less justify, as to why they had not challenged the selection immediately or any time after completion of the process, if they were aggrieved of the same. 22. Having regard to the legal position discussed above and the facts of the case, our considered and irresistible view in the matter is that the private respondents-petitioners did not have any reason to be aggrieved of the selection process nor had they any justification in invoking the writ jurisdiction of this Court after inordinate delay of over nine years of the completion of the selection process. Having remained fence sitters for about a decade, private respondents could not have been entertained with parity with those who had approached the Court in time. The writ petitions filed by the private respondents were, therefore, liable to be dismissed on the ground of delay and laches. In taking this view, we are backed by authoritative observation made by Hon'ble Supreme Court in S. S. Balu's case (supra), relied upon by Mr. Shah. In a similar situation Hon'ble Supreme Court has stated in para 17 of the judgment: "17. It is also well-settled principal of law that "delay defeats equity". The Government order was issued on 15.1.2002. The appellant did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal there against, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage...." (Emphasis supplied) 23. Having perused the judgment and order dated 19.9.2012 passed in SWP No. 766/2012 and judgment and order dated 26-03-2012 passed in SWP No.554/2012, we have found that question of delay and laches in filing both these writs have escaped proper and sufficient attention of the ld. Having perused the judgment and order dated 19.9.2012 passed in SWP No. 766/2012 and judgment and order dated 26-03-2012 passed in SWP No.554/2012, we have found that question of delay and laches in filing both these writs have escaped proper and sufficient attention of the ld. Writ Court in each case. Judgment dated 26.03.2012, which has been rendered without participation of respondents (herein appellants), would show that ld. Single Judge had not at all gone into this aspect of the matter. In SWP No.766/2012, ld. Writ Court rejected appellants' contention in this regard on the ground that substantial justice cannot be made causality for technicality to prevail, further taking note that petitioners' claim of having been approaching for redressal of their grievance has not been denied by the respondents. 24. Having discussed the law on the point, we have found over selves unable to be in agreement with the ld. Single Judge in SWP No.766/2012 that inordinate delay in invoking writ jurisdiction of High Court is merely a question of technicality. It is rather a question of sound and established principle of law and preponderance of judicial opinion is that unexplained long delay should not be encouraged as delay defeats equity. Discretionary remedy available under Article 226 of the Constitution cannot be invoked after a long and unexplained delay. Equity aids the vigilant and not the sleeping ones. A fence sitter cannot be encouraged to knock at the door of the court at his will or at a time of his convenience. 25. Contextually, we, though being of the view that both the writs should have been dismissed on the ground of delay and latches, have taken time to examine as to whether benefit accruing to earlier petitioners under the common judgment and order dated 6. 10. 2009 passed in the earlier writs was automatically available to the private respondents and in that they were justified in approaching the Court even at a late stage and were entitled to relief for doing complete justice to them, in spite of unexplained delay. 26. Perusal of judgment dated 6.10.2009 would show that Id. Writ Court neither has referred to the points secured by the selected candidates nor found that the points obtained by the petitioners of those writs were higher than the points obtained by selected candidates. What the Id. 26. Perusal of judgment dated 6.10.2009 would show that Id. Writ Court neither has referred to the points secured by the selected candidates nor found that the points obtained by the petitioners of those writs were higher than the points obtained by selected candidates. What the Id. Court had found was that some of the selected candidates did not possess requisite practice at Bar and the petitioners of those writ petitions have obtained `very high marks'. It is not visible from the judgment as to what had prevailed with the Id. Writ Court in directing the respondents to consider the appointment of the petitioners without ascertaining that merit obtained by them was higher than the merit obtained by the selected candidates. Let it be as it may, direction issued in those writs on a plain reading of the judgment was restricted petitioners of those writs and we see no reason that would percolate to all and sundry or that respondent were required to extend the benefit to the private respondents too. In any case the said direction is now a closed chapter. 27. It needs to be noticed that official respondents in their counter affidavit in SWP No.766/2012 had categorically stated that last candidate in the open merit category of the selected candidate had secured 65 points. In none of the two writ petitions, in which the impugned orders have been passed, was it the case of the private respondents (petitioners in writs) that they or any one of them had obtained more points than any other candidate of the category they or he/she belong/belongs to. Respondents in their counter affidavit in LPA 212/2012 have given list of all the private respondents indicating the points secured by them in the selection process, perusal whereof would show that none of them had secured 65 or more points. Respondents had also produced record in this regard during the course of hearing of the matter. Petitioner in SWP No.554/2012 admittedly had secured 55 points. Impression gatherable on perusal of record and on the basis of the arguments of Id. Respondents had also produced record in this regard during the course of hearing of the matter. Petitioner in SWP No.554/2012 admittedly had secured 55 points. Impression gatherable on perusal of record and on the basis of the arguments of Id. counsel for the respondents is that appointment of one of the earlier petitioners, namely, Abdul Aziz Zaindari, who had secured only 53 points, had prompted the private respondents to approach this Court and seek similar relief, notwithstanding that none of them had obtained 65 or more points, that is, points equal or more than the selected candidates. This, however, could not have been allowed because benchmark has to be the lowest points obtained by a selected candidate and not the points obtained by a candidate having been benefited by the order of this Court. No grievance of discrimination, therefore, is available to the private respondents. 28. Looked from this stand point also, we cannot subscribe to the view that question of doing substantial justice was involved in the said two writ petitions and question of delay and latches could have been overlooked. 29. For all what has been said and discussed above, we find strong merit in LPA No.212/2012 as well as LPA No.213/2012. Accordingly, both the LPAs are accepted and judgment and order dated 19. 9. 2012 and 26. 03. 2012 respectively passed in these writ petitions are set aside. Consequently, LPA No. 208/2012 is also accepted and order dated 6. 6. 2012 passed in SWP 896/2012 is set aside. Connected CMPs. in the entire appeals stand dismissed.