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2013 DIGILAW 548 (JK)

Ab. Rashid Mantoo v. State Of J&K

2013-09-13

DHIRAJ SINGH THAKUR

body2013
1. The petitioners in the present writ petition seek inter alia a writ of certiorari for quashing the order of consideration dated 21st of August, 2009 passed pursuant to an interim order dated 8th of July, 2009 in writ petition bearing SWP No. 731/2009. First round of litigation. 2. A petition bearing SWP No. 731/2009 came to be filed by a group of persons, who figure as petitioners No. 1, 3, 6, 5, 2 and 7 in the present petition. The grievance of the petitioners in the said petition was that the Settlement Officer, Collector, ordered the deputation of 37 Graduate Settlement Assistants for Patwar Training Course ignoring the petitioners who were also working as Settlement Assistants but possessed 10+2 qualification only. According to the petitioners, they could not have been ignored in view of Cabinet decision No. 155/2010 dated 23.05.2005 and order dated 27.09.2005. 2.1. The stand of the respondent-State in the said petition was that in terms of Jammu & Kashmir Revenue (Subordinate) Service Recruitment Rules 2009, only a graduate Settlement Assistant was eligible for being deputed to undergo Patwar Training and that the petitioners, being under graduate could not, therefore, be deputed to undergo the said training. 2.2. An interim order came to be passed by the writ court on 8-7-2009, directing the respondents to consider the case of the petitioners in the said petition for deputation to undergo Patwar Training. 2.3. An order of consideration dated 21.08.2009 came to be passed. Upon consideration by the official respondents, case of the petitioners was rejected on the ground that they were not eligible in view of the Rules of 2009. A copy of the said order of consideration was produced before the court in the aforementioned writ proceedings and was noticed by the court. 2.4. Finally, the aforementioned writ petition bearing SWP No. 731/2009 was dismissed vide judgment and order dated 30.12.2010, keeping in view the Jammu & Kashmir Revenue (Subordinate) Service Recruitment Rules 2009. The court held that since according to the Schedule appended to the Rules of 2009, only a Graduate, was eligible for promotion to the post of Patwari, the petitioners not being graduate were, therefore, not eligible for being considered for promotion to the post of Patwari and, as such, could not be ordered to be deputed for undergoing the Patwar Training Course. 2.5. Mr. 2.5. Mr. N.H. Shah, learned Deputy Advocate General, submitted that even a Letters Patent Appeal against the said judgment and order dated 30.12.2010, filed by the petitioners, had been dismissed. 2.6. The court, in no uncertain terms, held that the petitioners being ineligible in terms of the Rules of 2009, would not be said to have suffered infraction of any of their legal rights for not being deputed as such for undergoing Patwar Training Course. Second round of litigation. 3. The present petition has been filed in the second round of litigation. The order of consideration dated 21.8.2009, which was passed pursuant to interim direction dated 8.7.2009 in the writ petition bearing SWP No. 731/2009, has now been challenged inter alia in the present writ petition by two distinct groups of petitioners. `Group A' are the petitioners who had filed SWP No. 731/2009 and `group B' are other than those who figure in `group A'. 4. In so far as `group A' is concerned, the challenge is to the order of consideration dt. 21.8.2009, which was very much noticed and was before the court at the time when the writ petition was dismissed on 30.12.2010. The said order of consideration was passed pursuant to an interim direction dt. 8.7.2009, which order of consideration resulted in rejection of the claim of the petitioners. 5. SRO 74 dt. 31.3.2009 [Refer 2009 (8) JKS JK-153 : JKS Soft JKS/45], notifying the Jammu and Kashmir Revenue (Subordinate) Service Recruitment Rules, 2009, was very much in existence but was not challenged by the petitioners in the said writ petition. The order of rejection, thus, did not give any new cause of action to these petitioners to file a separate writ petition as has been done in the present case when the rights were conclusively determined by the writ court, holding that the petitioners were ineligible in accordance with the Rules of 2009. 6. Even when in the relief clause of the petition, the petitioners have now thrown a challenge to the Jammu & Kashmir Revenue (Subordinate) Service Recruitment Rules, 2009, notified vide SRO 74 dated 31.03.2009 [Refer 2009 (8) JKS JK-153 : JKS Soft JKS/45],, for issuance of a writ declaring them ultravires the Constitution, in-so-far-as these prescribe the qualification of graduation for the post of Patwari, no arguments were advanced to justify as to how the said qualification was ultravires the Constitution. In any case, the ground of challenge was available and could have been incorporated in the earlier petition. Having chosen not to challenge the SRO 74 dt. 31.3.2009 [Refer 2009 (8) JKS JK-153 : JKS Soft JKS/45], in the said petition, the petitioners 1, 2, 3, 5, 6 and 7 are estopped now to do the same in view of the principles as contained in Order 2 Rule 2 of the Civil Procedure Code. 7. In so far as `group B' petitioners are concerned, the relief of certiorari as regards challenge to the order of consideration dt. 21.8.2009, is barred by delay and laches. 8. In Ramchandra Shankar Deodhar v. State of Maharashtra & ors, (1974) 1 SCC 317 , the Apex court held that there was no inviolable rule whenever there was delay, the court must necessarily refuse to entertain the petition under Article 226. The question was one of discretion to be exercised in the facts and circumstances of each case. Delay and laches was not a rule of law but a rule of practice based on sound and proper exercise of discretion. 9. Another principle that was laid down by the Apex Court and followed in R&M Trust v. Koramangala Residents Vigilance Group & Ors, (2005) 3 SCC 91 , was that delay would be an important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution, if the same had resulted in creation of third party interest. 10. The third principle as regards delay and laches can be noticed in the judgment of the Apex Court in the case of State of M.P v. Bhailal Bhai AIR 1964 SC 1006 , which stated that the maximum period fixed by the legislature for grant of relief in a civil suit would ordinarily be reasonable standard for fixing the period to determine delay in seeking remedy under Article 226. The Apex court in the said case observed as under: "The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the legislature as the time within 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. However, the maximum period fixed by the legislature as the time within 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. The 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." 11. However, it does not lay down, as a matter of principle, that in every case, where a petition is filed within the period, which is otherwise prescribed for filing a civil suit for a particular relief, the court must, as a matter of rule, accept the petition and exercise jurisdiction under Article 226. Reference in this regard can be made to the case of Ramana Dayaram Shetty v. International Airports Authority of India, AIR 1979 SC 1628 , where even five months delay was considered to be fatal. The Apex Court in the said judgment observed as follows: "Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of respondent 4 and during this period, Respondent 4 incurred considerable expenditure aggregating to about Rs 1,25,000 in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most iniquitous to set aside the contracts of Respondent 4 at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of Respondent 4 but the appellant allowed a period of over five months to elapse during which Respondent 4 altered their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution." 12. Similar was the view taken by the Apex Court in Ashok Kumar Mishra v. Collector, Raipur, AIR 1980 SC 112 . 13. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution." 12. Similar was the view taken by the Apex Court in Ashok Kumar Mishra v. Collector, Raipur, AIR 1980 SC 112 . 13. In the present case, the cause of action, if any, had accrued to these petitioners (group B) in the year 2009 itself, when the petitioners who figure in `group A', had approached the court for redressal of their grievances. These petitioners clearly were fence sitters and took no action with regard to redressal of their grievance or enforcement of their rights till they decided to file the present petition in the year 2011. No plausible explanation has been given by this group of petitioners to explain the delay in filing the present petition. 14. Viewed thus, the petition is clearly misconceived and is dismissed with costs of Rs. 5,000/-, along with connected interim application.