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2019 DIGILAW 389 (JK)

Gurdev Singh v. State of J&K

2019-08-20

TASHI RABSTAN

body2019
JUDGMENT : Tashi Rabstan, J.—The facts, as gathered from the writ record, are that way back in the year 1998, the Director School Education, Jammu vide advertisement notice dated 21.04.1998 invited applications from eligible candidates of Jammu Division for various Class IV posts. The Director School Education constituted selection committees for each district, and these committees were to make recommendations to the Director School Education after completion of interview process. However, the Chief Education Officers of Jammu, Kathua, Poonch, Udhampur and Rajouri in contravention of the prescribed procedure issued the appointment orders on their own. The Director School Education vide order dated 28.06.1999 cancelled all the appointments. Various writ petitions came to be filed by the affected persons, which came to be disposed of by a common judgment directing the Government to re-examine the whole case. Thereafter, the Government decided to initiate fresh selection process and, accordingly, issued advertisement notice dated 26.04.2000 inviting fresh applications for Class-IV posts in respect of Jammu, Kathua, Rajouri, Udhampur and Poonch Districts. However, during the process of selection, the Government vide order dated 11.04.2002 ordered that the ousted Class IV employees be considered for appointment temporarily against the vacancies in the districts to which they belong on a consolidated salary of Rs.1200/- per month till such time fresh selection process is concluded and merit list is drawn. Thereafter, vide order dated 04.04.2003 the said candidates, adjusted on consolidated basis, were placed in the regular pay scale and the selection process pursuant to second advertisement notice came to be stopped. Feeling aggrieved, various writ petitions including SWP No.961/2003 came to be filed by some of the aggrieved candidates, who had applied pursuant to second advertisement notice dated 26.04.2000. All such writ petitions came to be disposed of by a common order with a direction to consider the case of appointment of the petitioners therein in the light of the decision taken by the State in connection with Basharat Hussain & others, who were writ petitioners in SWP No.1476/2003. It was made clear that in case the Government does not take any decision in the matter or if the Government decides not to accord same treatment to the petitioners therein as was given to Basharat Hussain & others in SWP No.1476/2003, then the order of the Government dated 11.04.2002 followed by order dated 04.04.2003 shall stand quashed. It was made clear that in case the Government does not take any decision in the matter or if the Government decides not to accord same treatment to the petitioners therein as was given to Basharat Hussain & others in SWP No.1476/2003, then the order of the Government dated 11.04.2002 followed by order dated 04.04.2003 shall stand quashed. Against the said judgment, the Government filed LPA No.49/2008 and the Division Bench vide judgment dated 30.07.2009 upheld the judgment of Single Bench with some modifications. Accordingly, in compliance of the judgment, the Government vide order dated 13.05.2010 appointed the petitioners in SWP No.961/2003 and other connected petitions against Class IV post. 2. Now the petitioners herein have filed the instant writ petition seeking the same relief on the ground that they too had applied in response to advertisement notice dated 26.04.2000, as such they are also entitled to be appointed against the post of Class IV on the analogy of petitioners in SWP No.961/2003 and other connected petitions. It is contended that they came to know only when the petitioners in SWP No.961/2003 and other connected petitions joined the department pursuant to order dated 13.05.2010. It is contended that they too represented before the respondents for their appointment against the post of Class-IV post, but the respondents did not pay any heed. Hence, the present writ petition. 3. Objections have been filed on behalf of respondents contending therein that the petitioners herein are not similarly circumstanced with the petitioners in SWP No.961/2003 and other connected petitions. It is further contended that the petition is bad on account of non-joinder of necessary parties. 4. I have heard learned counsel appearing for the respective parties, considered their rival contentions and also perused the writ file. 5. Admittedly, the petitioners are seeking the relief on the basis of judgment of Division Bench passed in LPASW No.49/2008 on 30.07.2009. It is also the admitted position that the petitioners herein including the petitioners in SWP No.961/2003 and other connected petitions had applied in response to advertisement notice dated 26.04.2000 for their selection against the post of Class-IV in the Education Department. It is also the admitted position that the petitioners herein including the petitioners in SWP No.961/2003 and other connected petitions had applied in response to advertisement notice dated 26.04.2000 for their selection against the post of Class-IV in the Education Department. When the Government vide order dated 04.04.2003 placed those candidates in the regular pay scale, who were earlier selected by the concerned Chief Education Officers and then adjusted on consolidated basis, the petitioners in SWP No.961/2003 and other connected petitions filed the writ petitions before this Court. However, the petitioners herein were neither a party in those writ petitions nor before the Division Bench in LPASW No.49/2008. It is to be seen here that when the petitioners in SWP No.961/2003 along with connected petitions succeeded in those petitions, the petitioners herein did not approach this Court. When the LPA Bench upheld the order of Single Judge with some modifications, even then the petitioners herein did not approach this Court. Not only this, when the Government issued order dated 13.05.2010 appointing the petitioners in SWP No.961/2003 and other connected petitions against the post of Class-IV in the Education Department, even then the petitioners did not approach this Court seeking the same relief as sought by the petitioners in SWP No.961/2003 and other connected petitions. The petitioners herein woke up from deep slumber only on 01.12.2010 when they filed the present writ petition, i.e., more than four and a half years of appointment of petitioners in SWP No.961/2003 and other connected petitions. The petitioners herein have not explained as to why they did not agitate the matter in the year 2003 when the petitioners in SWP No.961/2003 and other connected petitions approached this Court and had chosen to wait for more than eleven years. This shows that the petitioners were not vigilant and were sleeping over their rights, if any. At this stage, the petitioners cannot say that they were not aware of all that was going on in the Court. This shows that the petitioners were not vigilant and were sleeping over their rights, if any. At this stage, the petitioners cannot say that they were not aware of all that was going on in the Court. In such circumstances, I am of the view that the claim of petitioners, at this belated stage, cannot be entertained for appointment to the post-in-question nor they are entitled to be given the benefit of judgment passed in LPASW No.49/2008 for the simple reason that those persons who do not challenge the wrongful action of respondents at the relevant time, rather acquiesce into the same and wake 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. 6. What is held by the Supreme Court after taking note of the case law on the subject in paragraph No.29 in the case of Shiba Shankar Mohapatra and others v. State of Orissa and others, (2010) 12 SCC 471 , is relevant to reproduced hereunder: “29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty of delay and the laches. The court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallizes in the interregnum. (vide Aflatoon v. Lt. Governor of Delhi; State of Mysore v. V.K.Kangan; Municipal Council, Amhednagar v. Shah Hyder Beig; Inder Jit Gupta v. Union of India; Shiv Dass v. Union of India; A.P. SRTC v. N. Satyanarayana; and City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala.” 7. Further, I may cite the case of State of UP vs Arvind Kumar Srivastava, (2015) 1 SCC 347 , the relevant portions whereof are at paragraphs 22 and 23, which are as follows: “22. v. Dosu Aardeshir Bhiwandiwala.” 7. Further, I may cite the case of State of UP vs Arvind Kumar Srivastava, (2015) 1 SCC 347 , the relevant portions whereof are at paragraphs 22 and 23, which are as follows: “22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under. 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. 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. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India). With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. 23. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointments orders were issued in the year 1987, but were also cancelled vide orders dated 22-6-1987. The respondents before us did not challenge these cancellation orders till the year 1996 i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only was there unexplained delay and laches in filing the claim petition after a period of 9 years, it would be totally unjust to direct the appellants to give them appointment as of today i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.” 8. In the present case, the conduct of the petitioners herein demonstrates that they were sitting on the fence and were watching the proceedings from a distance. They came to the Court only after the persons similarly situated succeeded in their endeavour after fighting a long litigation in the Court. In the present case, the conduct of the petitioners herein demonstrates that they were sitting on the fence and were watching the proceedings from a distance. They came to the Court only after the persons similarly situated succeeded in their endeavour after fighting a long litigation in the Court. It is trite to state that a litigant who sleeps over his rights for years together cannot expect the Court to rush to his rescue, which itself disentitles a party to discretionary relief under Article 226 of the Constitution. The petitioners herein, therefore, are not entitled to claim the equitable relief by invoking the extra-ordinary writ jurisdiction of this Court nor entitled to the benefit of the said judgment by approaching the judicial forum belatedly. Further, the petitioners herein are seeking to quash the appointment of persons appointed against Class-IV post vide order dated 13.05.2010 without arraying them as party respondents. On this score too, the writ petition is liable to be dismissed on account of non-joinder of necessary parties. 9. In view of what has been discussed above, I do not find any merit in the writ petition. Accordingly, the same is dismissed along with connected MP, if any.