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2014 DIGILAW 133 (GAU)

Kamini Mohan Das v. State of Assam

2014-02-03

TINLIANTHANG VAIPHEI

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JUDGMENT Tinlianthang Vaiphei, J. 1. Misc. Case No. 2923 of 2013 is directed against the order dated 27.8.2013 passed by this Court dismissing the connected WP(C) No. 6575 of 2007 in default of prosecution. At the outset, Mr. B.D. Goswamy, the learned Standing counsel for the Education Department, points out that the writ petition itself suffers from laches, apart from its lack of merit, and restoring the writ petition under the peculiar facts of this case will only result in vexation and, therefore, should not be resurrected by allowing the application. Be that as it may, let me confess that the facts pleaded by the petitioner in the Misc. Case show that his counsel, was attending another Court when the case was called on for hearing and did have a good cause for his non-appearance on that occasion. Consequently, the application for restoration of WP(C) No. 6575 of 2007 is allowed. Nevertheless, I proceeded to hear Mr. P.J. Phukan, the learned counsel for the petitioner, and Mr. B.D. Goswamy, the learned Standing counsel for the Education, on merit on that day. Before I proceed further, I may advert to the basic facts of the case as projected by the petitioners. Pursuant to the advertisement published in 1996, the petitioner numbering 28 in all applied for the posts of L.P. School teachers. After completing the selection process, the Selection Board (the Sub-Divisional Advisory Board for Elementary Education, Rangia) prepared the merit list on 28.2.2001 wherein the names of the petitioners found a place. To the surprise of the petitioners, they were never given the appointments even though they also learnt that a number of Assistant of Teachers including one Shri Gautam Kalita have been given the appointments in a hush-hush manner by ignoring all the accepted norms. (Though the select list was prepared as early as 2001, according to the petitioners, it was still valid when this writ petition was filed in 2007.) It is the case of the petitioners that some of the appointed teachers were outside the select list and the very contents of the appointment orders revealed the unholy haste and eagerness on the part of the authorities to appoint those teachers the appointments were also in violation of the direction of the Level Empowered Committee constituted vide O.M. dated 6.1.99. 2. 2. It is also the case of the petitioners that some other persons were also given appointments till date in the vacancies available which are meant for the candidates to the advertisement of 1996. It is contended that the appointment orders are discriminatory in nature and that the petitioners should have been given preference as they were duly selected. It is also the case of the petitioners that they have recently come to know from a reliable source that in Kamrup District, there are a number of vacant posts available for the candidates to the advertisement of 1996 and that the respondent authorities are going to fill up those vacant posts without following any rules, norms and guidelines in this behalf; The respondent authorities by issuing the aforesaid appointment letters have extended the validity of the said select list till date, and they could not issue any appointment letter to any other person without first considering the cases of the petitioners. There are a number of vacancies in the L.P. Schools under Deputy Inspector of Schools, Rangia in the District of Kamrup, for which the petitioners are entitled to appointments. These are the contentions of the petitioners. 3. No affidavit-in-opposition has been filed by the respondents, but as already noticed, Mr. B.D. Goswamy, the leaned standing counsel for the respondents made elaborate submissions on the issue of laches. According to Mr. P.J. Phukan, the learned counsel for the petitioners; there is no inordinate delay in filing the writ petition inasmuch as the vacancies are still available and the select list, which is still now operated upon by the respondent authorities to pick and choose persons of their choice for giving appointment, cannot be said to have expired: to do so would result in grave miscarriage of justice. He, therefore, strenuously urges this Court not to non-suit the petitioners on the ground of laches and dispose of the case on merit. 4. The law is now well-settled that a person does not acquire a legal right to be appointed only because his name appears in the select list. It is also a well-settled principle of law that "delay defeats equity". The law on this aspect of the matter was reiterated by the Apex Court in State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436 in the folio wing manner. 53. It is also a well-settled principle of law that "delay defeats equity". The law on this aspect of the matter was reiterated by the Apex Court in State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436 in the folio wing manner. 53. Needless to say that the Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action.. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986. 54. This Court has consistently rejected the contention that a petition should be considered ignoring delay and laches in case the petitioner approaches this Court after coming to know of the relief granted by this Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See Rup Diamonds v. Union of India (1989)2 SCC 356 : AIR 1989 SC 674 , State of Karnataka v. S.M. Kotrayya (1996) 6 SCC 267 : 1996 SCC (L & S) 1488 and Jagdish Lal v. State of Haryana (1997) 6 SCC 538 : 1997 SCC (L&S) 1550 : AIR 1997 SC 2366 .) 5. The law of laches was applied by the Apex Court in S.S. Balu & Anr. v. State of Kerala & Ors., (2009) 2 SCC 479 to dismiss the writ petition. That was a case in which the appellants were the candidates whose names appeared in the rank list which was valid for the period 5.6.1997 to 5.6.2000. The law of laches was applied by the Apex Court in S.S. Balu & Anr. v. State of Kerala & Ors., (2009) 2 SCC 479 to dismiss the writ petition. That was a case in which the appellants were the candidates whose names appeared in the rank list which was valid for the period 5.6.1997 to 5.6.2000. Respondent state issued G.O. dated 15.1.2002 declaring that no vacancies were available and therefore no appointments were to be made out of the rank list. Some successful candidates (not the appellants) filed writ petitions in the year 2002 in High Court which was allowed by a Single Judge holding that rank list was prepared on the basis of the vacancies which were already in existence, and therefore legitimate claims of petitioners could not be denied on the ground that a new list had come into operation during pendency of writ petitions. The single Judge further declared that what was legitimately due to the candidates in the earlier rank list should be given to them. The respondent State filed a writ appeal before the Division Bench of Kerala High Court. The appellants got themselves impleaded as respondents 5 and 6 in the writ appeal. The Division Bench, on the basis of the concession extended by the respondent- State, granted limited relief that the 18 candidates who had filed the original writ petition, be given appointment out of earlier rank list but the Division Bench did not give any such direction in respect of appellants. Their contention was that Division Bench should have given similar direction in their cases because they were senior in the rank list to 18 candidates in whose cases, the Division Bench had given directions. 6. The Apex Court noted that it was a controversial point whether or not 125 vacancies actually existed for which first rank list was prepared, and the appellants had not laid down any factual foundation in this regard. We are herein concerned with the question of laches, which point was also pressed by the respondent State. The observations of the Apex Court on laches are found at paragraph 17 of the judgment, which are as follows: 17. It is also well-settled principle of law that "delay defeats equity". The government order was issued on 15.1.2002. The appellants did not file any writ application questioning the legality and validity thereof. The observations of the Apex Court on laches are found at paragraph 17 of the judgment, which are as follows: 17. It is also well-settled principle of law that "delay defeats equity". The government order was issued on 15.1.2002. The appellants 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 the other candidates who obtained the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commissioner to appoint the appellants at this stage...... 7. In the instant case also, the original select list was prepared by the Selection Board (Sub-Divisional Advisory Board) as early as 28.2.2001. Normally, the select list operates for not more than one year from its preparation. Yet, the petitioners approached this Court for the first time only on 20.12.2007 almost seven years after preparation of the select list. There is no explanation, much less satisfactory explanation, for the delay in approaching this Court after almost seven years of the preparation of the select list including their names. One must not overlook the principle underlying the principle of laches that the one who is not vigilant and does not seek intervention of the Court within reasonable time from the date of accrual of cause of action or alleged violation of constitutional, legal or other right is not entitled to relief under Article 226 of the Constitution. This principle will apply even when violation of fundamental right is involved in my judgment, this writ petition suffers from inordinate delay, which is not satisfactorily explained by the petitioners. Consequently, the writ petition is not maintainable, and is liable to be dismissed. For the reasons stated in the foregoing, this writ petition is not maintainable on the ground of laches and is hereby dismissed. However, the parties are directed to bear their own costs.