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2015 DIGILAW 323 (JK)

Ab. Rashid Shah v. State of J&K

2015-07-07

HASNAIN MASSODI

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JUDGMENT : Hasnain Massodi, J. 1. Petitioners, appointed as Constables in J & K Police Department, have, after serving department for more than three decades, retired as Assistant Sub-Inspectors on different dates given in writ petition. Petitioners' case is that because of treatment given to their colleagues namely S/Shri Hamidullah Dar, Constable No. 559/S; Abdul Rashid Rather, HC No. 1940/S, as also S/Shri Maharaj Krishan Bhat, Constable No. 49/CID; Mohammad Amin Ganai, SGCT No. 36/CID; Bansi Lal Bhat, SGC No. 72/5th JKAP; Mohammad Abass Najar, Constable No. 780/CID, promoted as Sub-Inspectors against direct quota, they deserve to be promoted as Inspectors with effect from April 01, 1987 and their pensionary benefits, accordingly, worked out and released in their favour. Writ petition is opposed on the ground that it badly suffers from delay and laches and cause accrued on April 01, 1987 cannot be agitated after delay of 27 years. 2. Heard and considered. 3. Controversy raised in petition has its roots in a policy decision taken in 1987 to promote Graduate constables as Sub-Inspectors against direct quota and Government Order No. 202-(P) 1987, dated April 01, 1987, whereby one Shri Hamidullah Dar, appointed as Constable No. 559/S, vide Government Order No. 689 of 1978, dated July 24, 1978, was in relaxation of Recruitment Rules, appointed as Sub-Inspector against direct quota vacancy. 4. Shri Abdul Rashid Rather -- a colleague of Shri Hamidullah Dar, also a Graduate and senior to him in the cadre of Constables, threw challenge to Shri Hamidullah Dai's promotion as Sub-Inspector in writ petition, being W.P. No. 519/1987. Writ Court disposed of writ petition on September 24, 1998, directing respondents to consider petitioners' claim for same treatment as given to Constable Hamidullah Dar. Appointment of Shri Hamidullah Dar, though held to be in violation of law laid down in J & K Public Service Commission v. Narinder Mohan AIR 1994 SC (1808)], was nonetheless left undisturbed. It is important to note that present petitioners joined Shri Abdul Rashid Rather SGC No. 366/CID, in throwing challenge to appointment of Shri Hamidullah Dar, as Sub-Inspector against direct recruitment quota. They were petitioners in WP No. 519/1987. However, they did not press petition, while petitioner No. 1 -- Shri Abdul Rashid Rather, prosecuted the matter and judgment dated September 24, 1998, was passed in his favour. 5. They were petitioners in WP No. 519/1987. However, they did not press petition, while petitioner No. 1 -- Shri Abdul Rashid Rather, prosecuted the matter and judgment dated September 24, 1998, was passed in his favour. 5. Government Order No. 202-(P) 1987, dated April 01, 1987 as already indicated was issued pursuant to policy to appoint Graduate Constables/Selection Grade Constables as Sub-Inspectors against direct quota. Appointment of Shri Hamidullah Dar as Sub-Inspector opened a floodgate for such claim by his similarly circumstanced colleagues. 6. Petitioners cannot be allowed to reagitate the issue that they of their free will abandoned on September 24, 1998. Petitioners raise same issue in present petition that was earlier raised by them in WP No. 519/1987. They, having not pressed writ petition without reserving right to reagitate the matter, cannot file a fresh petition on the grounds set out in earlier petition. The fact that the issue was subsequently raised by private respondents in SWP No. 3735/1997, and on April 30, 2001, writ petition was disposed of, with a direction to respondents to consider their claim and order of learned Single Judge, though reversed by Division Bench, was upheld by Hon'ble Supreme Court on August 01, 2008, does not change complexion of the case. It deserves to be noted that private respondents had not, like present petitioners, allowed their writ petition to be dismissed as not pressed They filed writ petition, being SWP No. 3735/1997, prosecuted it, till it was disposed of by judgment in their favour. 7. Above aspect of matter apart, petitioners cannot be allowed to invoke writ jurisdiction, after long delay of over 27 years. They through medium of instant petition project a cause that by their own admission was available to them in the year 1997. The fact that same cause was successfully agitated in 1997 would be of no help to petitioners. Petitioners, even after their colleagues Maharaj Krishan Bhat Constable No. 49/CID and others, filed writ petition, being SWP No. 3735/1997, have waited for 16 long years, to project their grievance. 8. The law, as has been emphasised times without number, is on the side of vigilant and does not favour a person who sleeps over his right for a long time. 8. The law, as has been emphasised times without number, is on the side of vigilant and does not favour a person who sleeps over his right for a long time. This Court in State of J & K and others v. Mohammad Syed Khan [ 2013 (1) JKJ 99 [HC]], while emphasising that cause entitling aggrieved to invoke writ jurisdiction, should be agitated with reasonable despatch, observed: "9 By a catena of judgments it is now well settled that the maximum period for filing a writ petition cannot be more than the period prescribed for filing a civil suit. In case of State of Madhya Pradesh and Anr. v. Bhailal Bhai AIR 1964 SC 1006 a 5-Judge Constitution Bench of Hon'ble the Supreme Court has authoritatively held that the maximum period fixed for filing a suit in a Civil Court must also be read as reasonable period for filing the writ petition. The aforesaid view is discernible from a bare perusal of para No. 21, which deserves to be set out in extenso:- "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 Art 226 It appears to us however that 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 Art 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 period, it will almost always be proper for the court to hold that it is unreasonable". The case in hand squarely falls within ambit of law laid down on the subject. 9. Writ petition, for reasons discussed, is destined to fail. Dismissed.