L. Mohan Rao S/o Balu v. Deputy Director of Tribal Welfare, I. T. D. A. Bhadrachalam
2020-01-22
P.NAVEEN RAO
body2020
DigiLaw.ai
ORDER : 1. Petitioner responded to the Teachers Recruitment notification, popularly known as District Selection Committee notification, in the year 2006 to the post of Hindi Pandit Grade-II. Petitioner belongs to erstwhile Khammam district. Petitioner claimed to have secured 46.5 marks. According to petitioner, he was eligible to be appointed as Hindi Pandit Grade-II as per the merit secured by him, but he was not appointed. According to petitioner, out of 22 posts of Hindi Pandit Grade-II notified, one post was earmarked for Ex-serviceman against roster point no. 37. There was no ex-serviceman selected in DSC 2006. As per the proviso appended to Rule 22(e) of the A.P. State and Subordinate Service Rules, if no ex-serviceman candidate is available, that vacancy should be treated as Open Category vacancy and be filled up by the next meritorious candidate. As petitioner was the next meritorious candidate, he ought to have been selected and not selecting the petitioner amounts to illegal denial of entitlement of petitioner for public employment as per the merit secured by him. Aggrieved by his non-selection, O.A. No. 2218 of 2008 is filed, transferred to this Court consequent to abolition of A.P. Administrative Tribunal. 2. The material on record would disclose that soon after finalization of selections, in the year 2008 petitioner along with others filed O.A. No. 2218 of 2008 praying to declare that petitioners are eligible and entitled for selection and appointment to the post of Physical Education Teachers/Grade-II Hindi Pandits under the control of the Project Officer as per the merit obtained by them in DSC-2006. 3. From the order of the Hon’ble Tribunal, it appears that insofar as the recruitment to the post of Grade-II Hindi Pandit concerned, grievance expressed before the Tribunal was that though there are large number of vacancies in the agency area, only four men candidates were selected. It was further contended that only 7 posts required to be filled up by women and 2 posts were meant for physically challenged persons and the remaining 11 posts were to be filled up by the S.T. General candidates, including the applicants, as per their merit. It was contended that out of 22 Grade-II Hindi Pandit posts, only 4 posts were filled up by S.T. (women) and remaining posts were not filled up.
It was contended that out of 22 Grade-II Hindi Pandit posts, only 4 posts were filled up by S.T. (women) and remaining posts were not filled up. It is thus clear that the claim made before the Tribunal by the petitioner and other similarly situated persons was against non-filling of the vacancies in Grade-II Telugu Pandit post available in the agency area and not applying the principle of reservation and other parameters of selections, but not with reference to roster point no. 37, earmarked to ex-servicemen. 4. While so, in DSC-2008 notification, it appears from the later correspondence, unfilled vacancy meant for ex-servicemen against roster point no. 37 was also notified. The notification of 2008 DSC was not challenged. 5. In O.A. No. 2218 of 2008, the Tribunal did not interfere with the selection procedure followed, but granted liberty to petitioners therein to make a representation ventilating their grievances. In terms of the earlier directions issued by the Tribunal, representation was made by some applicants on 30.11.2010 and in the said representation they were agitating only the issue as agitated before the Tribunal, but there was no whisper on roster point no. 37 vacancy. 6. For the first time in the representation dated 14.03.2011 to the Project Officer, ITDA, Bhadrachalam, petitioner raised the plea of not filling up 37th roster point by throwing open the said vacancy to open competition. This representation was not flowing out of the earlier direction issued by the Tribunal in O.A. No. 2218 of 2018. 7. Though petitioner may have secured good merit in DSC-2006 selections, it is not the case of petitioner that person who secured less merit than the petitioner was selected and appointed. 8. The issue requires consideration is whether petitioner can maintain this writ petition to claim employment to a vacancy notified in DSC-2006 for ex-servicemen, but was not filled and, therefore, ought to have been filled up by open competition in a O.A. filed in the year 2012. 9. In exercise of power of judicial review, writ Court can test the validity of a decision of appointing authority within the well laid down parameters of judicial review. However, the remedy under Article 226 of the Constitution of India is an extraordinary remedy and equitable. Grant of relief to an aggrieved person is discretionary in the hands of writ Court. 10.
However, the remedy under Article 226 of the Constitution of India is an extraordinary remedy and equitable. Grant of relief to an aggrieved person is discretionary in the hands of writ Court. 10. Though there is no fetters imposed on writ Court to entertain the writ petition, ordinarily writ Court do not entertain the writ petitions on stale matters. A Writ Petition filed invoking Article 226 of the Constitution of India must be within a reasonable time on arising of a cause of action. Merely because no time limit is prescribed a person can not knock the doors of this Court whenever he feels convenient for him. What is a reasonable time within which a person can avail the extra-ordinary jurisdiction of this Court depends on facts of a given case. More particularly, in matters relating to employment the petitioner has to go throw more rigorous filtering process to qualify for a relief. 11. In the following decisions, Supreme Court succinctly put the scope of exercise of power of judicial review when there is delay in knocking the doors of the High Court under Article 226 of the Constitution of India. 11.1. In State of Jammu and Kashmir vs. R.K. Zalpuri and Others, (2015) 15 SCC 602 the very issue of delay in instituting the writ petition after long lapse of time was considered. It was a case of dismissal and challenge was on the ground of violation of procedural safeguards incorporated into the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules. Disciplinary action resulted in imposing punishment of dismissal from service by order dated 06.09.1999. This was challenged by filing writ petition in the High Court on 18.02.2006. There was a delay of 7 years in filing writ petition. 11.2. The State Government raised objection on maintainability of writ petition on the ground of delay and laches. Without accepting this plea, punishment was set aside holding that Rule 34 of the Classification, Control and Appeal Rules was not complied. Even in appeal the Division Bench has not considered objection on delay in filing writ petition. Hence, appeal before Supreme Court. Supreme Court held that the delay and laches were not satisfactorily explained and, therefore, Writ Petition was not maintainable. 11.3. Supreme Court reviewed the precedent decisions and held: “20.
Even in appeal the Division Bench has not considered objection on delay in filing writ petition. Hence, appeal before Supreme Court. Supreme Court held that the delay and laches were not satisfactorily explained and, therefore, Writ Petition was not maintainable. 11.3. Supreme Court reviewed the precedent decisions and held: “20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 , wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus: (SCC p. 175, para 30) “30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved. (b) the petition reveals all material facts. (c) the petitioner has any alternative or effective remedy for the resolution of the dispute. (d) person invoking the jurisdiction is guilty of unexplained delay and laches. (e) ex-facie barred by any laws of limitation. (f) grant of relief is against public policy or barred by any valid law and host of other factors.” (Emphasis supplied) 12.1. In this regard reference to a passage from Karnataka Power Corporation Ltd. vs. K. Thangappan, (2006) 4 SCC 322 would be apposite: “6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party.” (Emphasis supplied) 12.2. After so stating, the Supreme Court, by referring to the authority in State of M.P. vs. Nandlal Jaiswal, (1986) 4 SCC 566 restated the principle articulated in earlier pronouncements to the following effect: “9.... the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction.
the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.” (Emphasis supplied) 13. In Chennai Metropolitan Water Supply and Sewerage Board vs. T.T. Murali Babu, (2014) 4 SCC 108 it is ruled thus: “16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant--a litigant who has forgotten the basic norms, namely, 'procrastination is the greatest thief of time' and second, law does not permit one to sleep and rise like a phoenix.
Delay reflects inactivity and inaction on the part of a litigant--a litigant who has forgotten the basic norms, namely, 'procrastination is the greatest thief of time' and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.” (Emphasis supplied) Supreme Court further held: “26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court.” (Emphasis supplied) 14. From the discussion in earlier paras, two things are noticed; firstly in the earlier round of litigation instituted immediately after finalization of the selections, the plea of diverting the vacancy reserved for ex-servicemen to open competition was not raised. Some other issues were agitated and secondly, by the time O.A. No. 2218 of 2008 was disposed of, DSC-2008 notification was issued. The carrying forward of ex-servicemen vacancy to DSC-2008 was not challenged. Assuming that petitioner was not aware of the carrying forward of the vacancy in the year 2008, said notification was not challenged even after the information was given by the Commissioner & Director of School Education in his letter dated 26.12.2011. 15. In this writ petition also, petitioner has not challenged any proceedings nor the DSC-2008 notification, but only seeks implementation of the Government orders dated 25.11.2008. In the said Government Memo, the Government granted liberty to the Commissioner to fill up the vacancies earmarked for ex-servicemen by open competition if those vacancies were not filled up by the ex-servicemen. This memo was not placed before the Tribunal in O.A. No. 2218 of 2008. 16. It is also appropriate to note at this stage that, as fairly stated by learned counsel for petitioner, in 2012-DSC recruitment, petitioner was selected as Secondary Grade Teacher and was appointed as such in the year 2013. 17. As noted above, by the time O.A. No. 2218 of 2008 was disposed of the DSC-2008 notification was issued, wherein the unfilled Ex-servicemen vacancy was notified.
17. As noted above, by the time O.A. No. 2218 of 2008 was disposed of the DSC-2008 notification was issued, wherein the unfilled Ex-servicemen vacancy was notified. It is not on record as to what happened to the vacancy notified in DSC-2008 and whether it was diverted to open competition and filled up or notified in subsequent DSCs. Assuming there is merit in the claim, these aspects ought to have been asserted before making a claim. Further, for the first time claim was made by the petitioner in the year 2011 and instant O.A. was filed in the year 2012. In matters concerning recruitment time is very essence. A grievance on illegalities in recruitment must be agitated soon after the same is noticed and before third parties interests crept in. Court is loathe in entertaining Writ Petition when claim is stale. The claim of petitioner is hit by delay, laches and acquiescence. Further, granting relief on a delayed claim may have cascading effect, regarding service conditions of other employees already recruited, employees recruited in pursuant to subsequent notifications, seniority etc. Thus, granting relief to petitioner may have more serious consequences. 18. For the aforesaid reasons, no relief as prayed for can be granted. Writ Petition is accordingly dismissed. Pending miscellaneous petitions shall stand closed.