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2022 DIGILAW 2084 (RAJ)

Jawab Do Sarkar through its Representative Shri Gyanesh Kumar Sharma v. State of Rajasthan through Principal Secretary

2022-07-21

ANOOP KUMAR DHAND, S.S.SHINDE

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JUDGMENT : ANOOP KUMAR DHAND, J. 1. Instant petition has been filed by the petitioner with the following prayer: “The humble petitioners most humbly prays that your lordship may very graciously be pleased to call for entire record pertaining to this case and accept and allow this petition and by an appropriate writ or directions, that the illegal, unreasonable and arbitrary appointment dated 30.09.2016 (Annexure-6) of Respondent No. 3, Shri Rajaram Sharma on the post of Drug Controller, Rajasthan, be quashed and set aside and Departmental Enquiry be conducted against him and other persons involved in this matter. Any other direction or order, which this Hon’ble Court may deem just and proper in the facts and circumstances of the case, may be passed in favour of the petitioner.” 2. The grievance of the petitioner is that the respondent No. 3 was appointed on the post of Drug Inspector on 18.01.1995 on compassionate grounds and he does not possess the requisite qualification for the said post. Thereafter the respondent No. 3 was appointed on the post of Assistant Drug Controller on 29.09.2014 and promoted on the post of Drug Controller on 30.09.2016 for the year 2016-2017 in violation of the Rajasthan Medical and Health Service Rules, 1963 (for short ‘the Rules of 1963’). 3. Per contra, learned counsel for the respondents submitted that the respondent No. 3 was appointed as Drug Inspector on 18.01.1995. And as per the Rules, 5 years experience is required for promotion to the post of Assistant Drug Controller. He submitted that the case of the respondent No. 3 and others was considered by the Departmental Promotion Committee in its meeting dated 12.08.2014 and promotion was given to him on the post of Assistant Drug Controller against the vacancy of the year 2010-2011. Counsel submitted that as per the Circular dated 31.03.2015 issued by the Department of Personnel, Government of Rajasthan, the experience is required to be calculated from the selection year against which promotion was granted and accordingly promotion was given to the respondent No. 3 on the post of Drug Controller as per the Rules of 1963. 4. Apart from above submissions, the counsel for the respondents have raised a preliminary objection to the maintainability of the petition. They co-jointly submit that the petition is barred by delay and laches as the petitioner has approached after a delay of about four years. 5. 4. Apart from above submissions, the counsel for the respondents have raised a preliminary objection to the maintainability of the petition. They co-jointly submit that the petition is barred by delay and laches as the petitioner has approached after a delay of about four years. 5. Be that as it may, without going into the merits of the case, it is clear that this petition has been filed after a delay of four years of the order of promotion given to the respondent No. 3 without giving any explanation of delay. 6. Clearly, the petition is barred by delay and laches. The petitioner has approached this Court after more than four years. There is no satisfactory explanation for laches and the delay in filing the petition on the part of the petitioner. Further third party rights have been entrenched. The law has long set its face against indolent litigants who approach this Court after a long delay. 7. The courts have consistently observed that delay and laches on part of the litigant will disentitle him to any relief. In this regard the Hon'ble Supreme Court has settled the law with clarity and observed it with consistency. 8. The line of authorities on this point are consistent and long. The discussion will benefit from the authorities in point. 9. The Hon'ble Supreme Court in R&M Trust vs. Koramangala Residents Vigilance Group and Others, 2005 (3) SCC 91 held thus: “There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights.” 10. The Hon'ble Supreme Court in Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service, AIR 1969 SC 329 held thus: “Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights.” 10. The Hon'ble Supreme Court in Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service, AIR 1969 SC 329 held thus: “Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.” 11. A similar sentiment was echoed by the Hon'ble Supreme Court in Shiv Dass vs. Union of India, 2007 (9) SCC 274 , as under: “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.” 12. The delay would entrench independent third party rights, which cannot be dislodged. The deposit of subsequent events obscures the original claim and alters the cause itself. The delay would entrench independent third party rights, which cannot be dislodged. The deposit of subsequent events obscures the original claim and alters the cause itself. The refusal to permit agitation of stale claims is based on the principle of acquiescence. In certain situations, the party by its failure to raise the claim in time waives its right to assert it after long delay. 13. Similarly, the Hon’ble Apex Court in the case of Chairman/Managing Director, U.P. Power Corporation Ltd. and Others vs. Ram Gopal, Civil Appeal No. 852 of 2020 and Special Leave Petition (Civil) No. 36253 of 2016, decided on 30.01.2020, has held in Para-16 as under: “Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fencesitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced.” 14. In Banda Development Authority vs. Moti Lal Agarwal and Others, (2011) 5 SCC 394 , it was held thus: “16. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits.” 15. The above stated position of law on the question of delay and laches on part of the petitioner, control the facts of the case. There is no satisfactory explanation of the delay in the petition. The above stated position of law on the question of delay and laches on part of the petitioner, control the facts of the case. There is no satisfactory explanation of the delay in the petition. The explanation for laches is self serving, lacks credibility and is accordingly rejected. The petition is barred by delay and laches and is not liable to be entertained. 16. The petition is dismissed.