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2018 DIGILAW 530 (JK)

Mohammad Haneef v. State of J&K

2018-07-18

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : 1. The petitioner claims accelerated promotion on account of his participation in militancy related operations as a Constable as far back as in 1999. It is stated that the official respondents had granted promotion to private respondents 6 and 7 who were given out of turn promotion to the grade of Senior Grade Constable ignoring the better right of the petitioner. 2. It is stated that the petitioner approached this court by way of SWP No.389/2000 which was disposed of by virtue of order dated 26.04.2000 with a direction to the respondents to consider the case of the petitioner for out of turn promotion. 3. It was further urged that failure to do the needful had forced the petitioner to file a contempt petition also. Subsequently, it appears that the petitioner was promoted out of turn promotion to the post of Selection Grade Constable vide order dated 11.09.2001 and subsequently was also promoted as Head Constable on his own turn in the year 2010. 4. The grievance of the petitioner is that he ought to have been promoted to the post of ASI along with respondents 6 and 7. 5. In response, the stand taken by the official respondents is that pursuant to directions issued by this Court in SWP No.389/2000, case of the petitioner was considered for out of turn promotion but was rejected. It is stated that on account of his performance in the operations, the petitioner was found fit only for a cash reward which was given to the petitioner. It was stated that claim of the petitioner was rejected vide order no.3585 of 2000 dated 24.10.2000. It was thus urged that claim of the petitioner was belated and suffer from delay and laches. 6. Heard counsel for the parties. 7. Admittedly, the petitioner’s case appears to have been considered and rejected in the year 2000. The petitioner has not filed any rebuttal to the objections filed by the respondents that such a consideration order had been passed. In any case, the petitioner had remained silent from 2000 till the filing of the present petition on 30th November, 2017. The petitioner has miserably failed to explain the delay in filing the petition muchless the delay has been satisfactorily explained. 8. Law with regard to delay and laches is no longer res integra. In any case, the petitioner had remained silent from 2000 till the filing of the present petition on 30th November, 2017. The petitioner has miserably failed to explain the delay in filing the petition muchless the delay has been satisfactorily explained. 8. Law with regard to delay and laches is no longer res integra. Reference in this regard can be made to a five-Judge Constitution Bench of the Hon’ble Supreme Court in the case of State of Madhya Pradesh and anr v. Bhailal Bhai : AIR 1964 SC 1006 , where it was held that delay in seeking a remedy under Article 226 more than the prescribed period of limitation would be considered unreasonable. The Apex Court held:- “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 b y 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 this period, it will almost always be proper for the court to hold that it is unreasonable”. (Emphasis added). The ratio of this judgment has consistently been followed. In State of Maharastra v. Digamber, : 1995 (4) SCC 683 , it was held: 14. ………………Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.” In Tukaram Kana Joshi and ors. v. Maharastra Industrial Development Corporation and ors.,( 2013) 1 SCC 353, the Apex court held that the doctrine of delay and laches was not an absolute bar but a principle to decline exercise of discretionary powers under writ jurisdiction to grant relief. 9. Testing the facts of the present case on the touchstone of the legal principles above, it can be seen that the petitioner has altogether failed to lay any basis to overcome the hurdle of delay and laches. 10. For the reasons mentioned above, this petition is found to be hit by the vice of delay and laches and is, accordingly, dismissed.