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2019 DIGILAW 1205 (GAU)

Kuladip Medhi v. State of Assam

2019-11-07

M.R.PATHAK

body2019
ORDER : M.R. Pathak, J. 1. Heard Mr. N. Baruah, learned counsel for the petitioners in W.P.(C) No. 7876/2019 and Ms. F. Ahmed, learned counsel for the petitioners in W.P.(C) No. 7973/2019. Also heard Mr. S.S. Roy, learned Government Advocate, Assam for the State respondent in both the writ petitions. 2. Issues involved in these two writ petitions are same, arising out of the same advertisement dated 08.02.2010 pertaining to 3843 numbers of vacant posts of Armed Branch Constables in Assam Police and they claim their right flows from the judgment and order dated 22.02.2019 passed in WP(C) No. 2725/2010, involving similar issue. As such both the writ petitions are taken up for consideration together. 3. It is stated that the authorities of the Assam Police on 08.02.2010 issued an advertisement for recruitment of Armed Branch Constables in Assam Police Battalions against 3843 numbers of vacant posts and pursuant to the same the petitioners applied for the said posts and also participated in the selection process for it by appearing before the Selection Committee. However, they did not find their names amongst the selected candidates. 4. It is contended that from reliable source they learnt that the State respondents initially prepared a select list for the advertised posts of Constables, but cancelled it for the reasons best known to the respondent authority and subsequently, after a lapse of five months or so, respondents published a new select list, selecting candidates who were not even found to be qualified in the physical efficiency test and that some of such selected candidates did not even appear in the interview. 5. It is also stated by the petitioners that though they had given up all hopes of getting any appointment from the said selection test and interview, but they could come to know that by a recent judgment and order dated 22.02.2019 passed in WP(C) No. 2725/2010 of this Court considered the case of similarly placed candidates as that of the petitioners, who participated in the aforesaid selection process, but as their names did not figure in the said selection, they approached this Court against non-inclusion of their names in the select list. 6. Petitioners submitted that as they are similarly placed to the petitioners of WP(C) No. 2725/2010 disposed with direction on 22.02.2019 and therefore, they are entitled for similar relief as passed in WP(C) No. 2725/2010. 7. 6. Petitioners submitted that as they are similarly placed to the petitioners of WP(C) No. 2725/2010 disposed with direction on 22.02.2019 and therefore, they are entitled for similar relief as passed in WP(C) No. 2725/2010. 7. The Petitioners' herein have prayed for setting aside and quash the appointments made to the candidates pursuant to the said advertisement dated 08.02.2010 and for a direction to the respondents herein to issue necessary order of appointment to the petitioners and also prayed for a direction to the respondent to adjust or appoint the petitioners in newly created vacant posts in Assam Police. 8. The petitioners submitted that their inordinate delay in approaching the Court should be condoned considering the fact that they are not highly educated persons and not familiar with the details of law, which should be condoned. 9. Petitioners herein have clearly admitted the fact that they have approached this Court only after coming to know about the order of the Court dated 22.02.2019 passed in WP(C) No. 2725/2010 and they awaited since the year 2010, even after publication of the select list of the candidates pertaining to the advertisement dated 08.02.2010, where their names did not figure. 10. The petitioners have further contended that they filed representation before the Inspector General of Police (Administration), Assam, Guwahati after the said Judgment and Order dated 22.02.2019 passed in WP(C) No. 2725/2010, which are pending for disposal and, therefore, their cases should be considered by the respondent authorities. 11. A Bench of three Hon'ble Judges of the Hon'ble Supreme Court in the case of Jagdish Lal Vs. State of Haryana, reported in (1997) 6 SCC 538 that relates to promotion have held that the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution....Suffice to state that the appellants kept sleeping over their rights for long and elected to wake up when they had the impetus Virpal Chouhan (1995) 6 SCC 684 and Ajit Singh (1996) 2 SCC 715 ratios. 12. Regarding approach of a petitioner before the Writ Court after much delay and unexplained delay, the Hon'ble Supreme Court in the case of NDMC Vs. Pan Singh, reported in (2007) 9 SCC 278 have held that- "After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. 12. Regarding approach of a petitioner before the Writ Court after much delay and unexplained delay, the Hon'ble Supreme Court in the case of NDMC Vs. Pan Singh, reported in (2007) 9 SCC 278 have held that- "After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time." 13. In the case of State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors., reported in (2015) 1 SCC 347 , pertaining to the advertisement made in the year 86 for the posts of Homeopathic Compounder and Ward Boy and selection to such posts where appointments made pursuant to such selection which were later cancelled by orders dated 22.06.1987 against which the grieved candidates approached the Tribunal in the year 1987 itself and the Tribunal passed the judgment in favour of the aggrieved petitioners on 16.08.1991 holding the said order dated 22.06.1987 as illegal and void and quashed the same against which the ate filed writ petition in the High Court which was dismissed on 27.08.1992 confirming the decision of the Tribunal, against which the State preferred Special Leave petition which was dismissed on 12.08.1994 and thereafter, said Arvind Kumar Srivastava in the year 1995 filed a writ petition for giving him appointment under the strength of the judgment of the Tribunal dated 16.08.1991, the Hon'ble Supreme Court have held as follows:- "22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim." 14. A three Judge Bench of the Hon'ble Supreme Court in the case of State of Maharashtra Vs. Digambar, reported in (1995) 4 SCC 683 have held that- "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 blameworthy 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." "Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct." "Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement for such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily." 15. In K.V. Rajalakshmiah Setty Vs. State of Mysore, reported in AIR 1967 SC 993 , it was first stated by the Hon'ble Supreme Court that: "representations would not be adequate explanation to take care of delay." 16. In State of Orissa Vs. Pyarimohan Samantaray, reported in (1977) 3 SCC 396 , the Hon'ble Supreme Court have held that "Making of repeated representations was not regarded as satisfactory explanation of the delay." In that case, the petition had been dismissed for delay alone. 17. The petitioners of WP(C) No. 7876/2019 have filed their writ petition on 1.10.2019 whereas the petitioners of WP(C) No. 7973/2019 have filed their writ petition on 3.10.2019, more than 09 (nine) years after publication of list of selected candidates to the 3843 numbers of vacant posts of Armed Branch Constables in Assam Police in terms of the advertisement dated 8.2.2010, without stating any valid reason for such delay, except filing of such representations, noted above and that they had come to know about the said Judgment and Order dated 22.02.2019 passed in WP(C) No. 2725/2010. 18. In the present case, the delay in approaching the Court by the petitioners after nine years for exercising the power of Writ jurisdiction is inordinate and unexplained. 18. In the present case, the delay in approaching the Court by the petitioners after nine years for exercising the power of Writ jurisdiction is inordinate and unexplained. Moreover, another reason of the petitioners to approach this Court in these writ petitions is that similarly placed persons like them and their counterparts had approached the court earlier in time in WP(C) No. 2725/2010 and succeeded in their efforts by obtaining Judgment and Order dated 22.02.2019 passed in the said writ petition and therefore the petitioners have approached the Court now, at belated stage, to get similar relief in terms of said Judgment and Order dated 22.02.2019. 19. The petitioners have failed to give any valid reason of the lapse of time and there is no reasonable explanation for the delay in approaching the Court and in their negligence in pursuing their rights. Moreover, selected candidates have already been appointed and in the meanwhile, the rights of the third parties (selected and appointed candidates) have already accrued and if at this belated stage, the claims of the petitioners are allowed after such delay and negligence, it would affect the rights of the innocent third parties. From their own admission it can also be seen that the petitioners are fence-sitters. 20. For the reasons above, the Court is of the view that the petitioners have failed to establish any valid and reasonable ground for exercise of equitable jurisdiction of the Court under Article 226 of the Constitution of India, more particularly, on account of their delay and laches in approaching the Court after more than 9 (nine) years and being fence-sitters. 21. Accordingly, both the writ petitions are dismissed.