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2017 DIGILAW 330 (JK)

Ashwani Kumar v. State of J&K

2017-07-15

SANJEEV KUMAR

body2017
JUDGMENT : 1. With the consent of learned counsel for the parties, the writ petition is admitted to hearing and taken up for final disposal. 2. The petitioners are aggrieved of Government Order No. 01-COOP of 2015 dated 16th January, 2015, whereby the claim of the petitioners for appointment to the posts of Junior Supervisors/Sub-Auditors is rejected. The petitioners have also assailed Advertisement Notification No. 03 of 2012 dated 28th December, 2012, insofar as it pertains to the Notification for the posts of Junior Supervisors/Sub-Auditors of Co-operative Department in District Cadre, Kathua. The petitioners have also sought a direction to the respondents to appoint them against the posts of Junior Supervisors/Sub-Auditors in District Kathua, which remained unfilled in the selection process initiated by the Jammu and Kashmir Service Selection Board (hereinafter called ‘the Board) vide Advertisement No. 06 of 2005 dated 21st November, 2005. 3. Briefly stated, the facts of the case, as projected in this writ petition are that the petitioners had applied for the posts of Junior Supervisors/Sub-Auditors in response to Advertisement Notice No. 06 of 2005 dated 21st November, 2005 issued by the Board. The petitioners and four others namely, Sanjay Kumar, Vishav Jyoti, Shashi Bhushan and Balmiki Sharma were not called for interview by the Board. The aforesaid persons excluding the petitioners approached this Court by way of writ petition, SWP No. 194/2007 titled Sanjay Kumar and ors. v. State of J&K and others. The writ petition filed by the aforesaid four persons was entertained and this Court vide order dated 12th February, 2007 directed respondent No. 1 to interview the petitioners. It was further provided that their result would be kept in a sealed cover and would be opened after the result of the writ petition. 4. It is contended by the petitioners that pursuant to the interim directions, the petitioners were interviewed but without waiting for the disposal of the writ petition and declaration of their result, the select list was published. This made the aforesaid four persons to knock the doors of this Court once again by way of writ petition being SWP No. 229/2008 in which the select list issued by the Board was challenged on various grounds. This made the aforesaid four persons to knock the doors of this Court once again by way of writ petition being SWP No. 229/2008 in which the select list issued by the Board was challenged on various grounds. It further appears that during the pendency of the aforesaid writ petition, the Co-operative Department issued the appointment orders on the basis of selection list forwarded by the Board and appointment orders in favour of in as many as 15 candidates were issued. The aforesaid candidates, i.e., Sanjay Kumar and others challenged the appointment orders issued in favour of the aforesaid 15 persons through the medium of SWP No. 774/2008. As is apparent from the records, all the petitions filed by the aforesaid four candidates, i.e., Sanjay Kumar and others were clubbed together and were disposed of by this Court vide judgment dated 10th May, 2011 it is thus submitted that the petitioners being extremely poor people could not file the writ petition when Sanjay Kumar and others filed SWP No. 774/2008 and were not even advised to do so by the counsel earlier engaged by them. The order impugned is further challenged on the ground that as is admitted position that even after the implementation of the judgment dated 10th May, 2011 and the appointment of the petitioners therein, there were still six posts remaining unfilled against which the petitioners could have been considered. In short, the petitioners are seeking consideration of their case for appointment on the analogy of the writ petitioners of SWP No. 774/2008. 5. The respondents have filed their reply and have resisted the claim of the petitioners inter alia on the ground that the writ petition filed by the petitioners suffers from gross delay and latches and, therefore, cannot be entertained as also that the petitioners are not similarly situated with the writ petitioners in SWP No. 774/2008, in whose case, this Court vide interim order had kept four posts reserved and that they had the directions of this Court in their favour to interview them by the Board. In short, the respondents have supported the order impugned and have contended that the petitioners are not entitled to any relief on the analogy of writ petitioners of SWP No. 774/2008, as in the case of aforesaid petitioners, there were certain distinctive features. In short, the respondents have supported the order impugned and have contended that the petitioners are not entitled to any relief on the analogy of writ petitioners of SWP No. 774/2008, as in the case of aforesaid petitioners, there were certain distinctive features. It is submitted, that the petitioners are fence sitters and did not approach the at the appropriate point of time and, therefore, cannot be allowed to file the petition after more than eleven years after the issuance of Advertisement Notice and nine years after the issuance of select list. 6. Considered the submissions made by the learned counsel for the parties. 7. As is apparent from the record, the Advertisement Notification was issued in the year 2005, to be exact on 21st November, 2005. The selection process was concluded in the year 2008 when the select list was forwarded by the Board vide its No. 202 Adm of 2008 dated 18th March, 2008 and the appointment orders in favour of the selected candidates were issued. undoubtedly, the petitioners felt satisfied with the selection process carried out by the Board and atleast did not feel aggrieved at any point of time. To the contrary, four persons namely, Sanjay Kumar, Vishav Jyoti, Shashi Bhushan and Balmiki Sharma, who were not short-listed for interview, approached this Court at the earliest possible opportunity and in their case interim directions were passed directing the Board to interview them and even four posts were kept reserved. Subsequently, when the selection process was concluded and the appointment orders were issued in favour of the selected candidates without consideration of the case of the petitioners therein and without waiting for the disposal of SWP No. 229/2008, M/s. Sanjay Kumar and others again approached this Court through the medium of SWP No. 774/2008. Both the petitions were clubbed together and this Court vide judgment dated 10th May, 2011 allowed the petitions and directed the respondents to offer appointments to the petitioners for the posts of Junior Supervisors/Sub-Auditors in District Kathua. As is apparent from the judgment dated 10th May, 2011, directions were passed in the context that orders passed by the Court for keeping four posts reserved and for interviewing the petitioners, were not implemented by the Board in letter and spirit and the select list for all the posts advertised was issued. As is apparent from the judgment dated 10th May, 2011, directions were passed in the context that orders passed by the Court for keeping four posts reserved and for interviewing the petitioners, were not implemented by the Board in letter and spirit and the select list for all the posts advertised was issued. In the backdrop of special facts and circumstances noted in judgment dated 10th May, 2011, the writ petitions filed by Sanjay Kumar and others were allowed and direction was issued for their appointment. The respondents have accepted the judgment and implemented the same by offering appointment to Sanjay Kumar and others who were writ petitioners in SWP No. 774/2008. The petitioners never approached this Court raising any grievance against the selection and as a matter of fact, waited for the writ petitions filed by Sanjay Kumar and others to be decided by the Court. They did not approach this Court immediately after the writ petitions filed by Sanjay Kumar and others, i.e., SWP Nos. 774/2008 and 229/2008 disposed of on 10th May, 2011. It is only after the respondents implemented the judgment and issued orders of appointment in favour of Sanjay Kumar and others, the petitioners woke up from the slumber and filed the instant writ petition. It is correctly stated by the respondents that the writ petition suffers from delay and latches and, therefore, cannot be entertained. 8. In the given facts and circumstances and the sequence of events narrated hereinabove, it is abundantly clear that the petitioners were fence sitters and never approached this Court voicing their grievance at any time before the judgment passed in SWP No. 774/2008 was implemented. It is no doubt true that normal rule is that when a particular set of employees is given relief by the Court, all other similarly situated persons would be treated alike by extending that benefit as that would be in consonance with the spirit enshrined under Article 14 of the Constitution of India. But this normal rule is also subject to well recognized exceptions. The relief can be denied if there is inordinate delay in approaching the Court or there is acquiescence by conduct. But this normal rule is also subject to well recognized exceptions. The relief can be denied if there is inordinate delay in approaching the Court or there is acquiescence by conduct. Such persons who do not raise their grievance immediately and atleast within a reasonable time and wait for some identical benefit that may be extended to similarly situated persons contesting their claims in the Courts would be treated as fence sitters and in their case, delay and latches and acquiescence would be a valid ground for rejection of their case. 9. Admittedly, the order passed in Sanjay Kumar and others’ case i.e., SWP No. 774/2008, cannot be construed to be a judgment in rem passed with intention to give benefit to all similarly situated persons, rather a careful perusal of the same would indicate that the aforesaid judgment was passed in perculair facts and circumstances of the aforesaid case. 10. Viewed thus, this Court finds that Advertisement Notification in this case was issued in the year 2005, selection process was concluded in the year 2008 which was followed by orders of appointment issued in favour of the selected candidates and the judgment in the matter relied upon by the petitioners was passed in the year 2011, the petitioners waited till the judgment passed in the case of Sanjay Kumar and others was implemented and approached this Court after huge delay of more than eleven years of the issuance of the Advertisement Notice and nine years after the issuance of select list. 11. This petition, therefore, suffers from gross delay and latches besides the judgment in the case of Sanjay Kumar and others, i.e., SWP No. 774/2008 dated 10th May, 2011 was passed in peculiar facts and circumstances of the case and, therefore, even on the analogy, the benefits of aforesaid judgment could not extended to the petitioners. In the view, I have taken I find support from the judgment of Hon’ble Supreme Court passed in the case titled State of UP v. Arvind Kumar Srivastava, (2015) 1 SCC 347 , wherein a similar claim put up by the petitioners was rejected on the ground of delay and latches as well as of acquiescence. The aforesaid judgment is fully attracted to the facts of this case. 12. The aforesaid judgment is fully attracted to the facts of this case. 12. Viewed from any angle and in the circumstances pointed out above, this writ petition is found to be without merit and is, therefore, dismissed along with connected (MP).