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2024 DIGILAW 202 (JHR)

Gyanu Thapa v. State of Jharkhand

2024-02-22

RAJESH SHANKAR

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ORDER : 1. The present writ petition has been filed for quashing letter no.4487 dated 29 th July, 2009 (Annexure-1 to the writ petition) issued under the signature of the Commandant, Jharkhand Armed Police-1, Ranchi-respondent no.5, whereby a decision was taken not to entertain the petitioner’s representation. Further prayer has been made for issuance of direction upon the respondents to consider the case of the petitioner for appointment on the post of Bigular Sipahi (Bigular Constable). The petitioner has also prayed for issuance of direction upon the respondent no.4 to dispose of his representation dated 18 th September, 2009. 2. Learned counsel for the petitioner while assailing the impugned order dated 29 th July, 2009 submits that pursuant to Advertisement no.02 of 2008 the petitioner applied in the month of April, 2008 for appointment on the post of Bigular Constable for which physical test was done and according to merit list he was directed to give his joining on the said post, which is evident from the impugned letter no.4487 dated 29 th July, 2009. 3. It is further submitted that as per the direction of the concerned authority, the petitioner appeared before the respondent no.5 and got his documents verified by the Deputy Superintendent of Police, however, he left his documents in the said office and went away. Thereafter, the petitioner again tried to give his joining on 19 th November, 2008, as in the meantime he got seriously ill and was diagnosed with Infective Hepatitis and due to the said reason he was suggested complete bed rest for the period from 15 th June, 2008 to 17 th November, 2008. After having declared fit by the doctor, he went to give his joining on the said post, however, he was not allowed to give his joining. 4. It is further submitted that there was no laches on the part of the petitioner for the delay caused in giving joining pursuant to his selection, rather the same happened due to the reason that he got seriously ill as explained above. Under the said circumstance, the respondent authorities may be directed to accept the joining of the petitioner on the said post. 5. Mr. Under the said circumstance, the respondent authorities may be directed to accept the joining of the petitioner on the said post. 5. Mr. Sreenu Garapati, learned S.C.III appearing on behalf of the respondents, refers to paragraph nos.10 to 13 of the counter affidavit dated 23 rd February, 2021 filed on behalf of the respondent no.5, which read as under:- “10. That it is humbly stated and submitted that with regard to the statement and averments stated in Para 5 to 7 of the writ petition the petitioner applied for the post of Bigular Constable vide advertisement no.02/2008. The petitioner participated in the said selection process and was found successful for appointment to the post of Bigular Constable. That for all the selected candidates for different posts, merit list was prepared and all candidates who were asked to report in the Battalion for verification of documents w.e.f. 07.05.2008 to 20.05.2008 and the same was published in daily newspaper. Pursuant to the said direction the petitioner also appeared in the battalion before Dy. S.P. Sri Bhandari Manjhi. The petitioner after verification of certificates/documents left the place without any information to anyone behind the certificates and documents in the office of the respondent. The petitioner did not join to the post of Bigular Constable after verification of documents. 11. That it is humbly stated and submitted that with regard to the statement and averments stated in Para 8 it is submitted that the Commandant, JAP-1 Ranchi vide memo no.3844 dated 27.06.2008 directed the petitioner to give his joining as Bigular Constable within two days otherwise his candidature to the said post shall be cancelled. 12. That it is humbly stated and submitted that with regard to the statement and averments stated in Para 9 of the writ petition that the petitioner in the present Para has annexed a medical certificate issued by the Director and as per the said certificate he was under treatment from 15.06.2008 to 17.11.2008. Thereafter the petitioner claimed to have approached before the authority on 19.11.2008. It is relevant to mention here that the validity of the merit list was six months from the date of publication, which is evident from the memo no.728 dated 02.04.2008 issued by the DIG, JAP Ranchi. The validity of the merit list has been fixed as six months on the basis of the Home Dept. notification no.3300 dated 12.11.2001. 13. It is relevant to mention here that the validity of the merit list was six months from the date of publication, which is evident from the memo no.728 dated 02.04.2008 issued by the DIG, JAP Ranchi. The validity of the merit list has been fixed as six months on the basis of the Home Dept. notification no.3300 dated 12.11.2001. 13. That it is humbly stated and submitted that with regard to the statement and averments stated in Para 10 & 11 states that since the validity of merit list against the advertisement published dated 05.05.2008 to 06.05.2008 which expired on 07.11.2008 and as such the claim of the petitioner for appointment to the post of Bigular Constable has been rightly been turned down by the respondent authorities, which is evident from memo no.4487 dated 29.07.2009 passed by the Commandant, JAP-1, Ranchi.” 6. Heard learned counsel for the parties and considered the relevant materials available on record. As per the stand taken by the respondents in the counter affidavit, the period of joining pursuant to the petitioner’s selection in terms with Advertisement no.02 of 2008 had expired on 7 th November, 2008 and, therefore, his claim for appointment on the said post was rightly turned down. The factual assertion of the petitioner is that during document verification between 7 th May, 2008 and 20 th May, 2008, he left his certificates in the office of the respondent no.5 and went away and subsequently came back to the office of the said respondent to again give his joining on 19 th November, 2008, has not been admitted by the respondents. However, it has been stated in the counter affidavit that the petitioner represented the respondent no.5 on 23 rd June, 2009 i.e. after more than a year from the dates of document verification during which he was called for the said purpose. 7. At this juncture, learned counsel for the petitioner submits that the case of the petitioner may be considered sympathetically, as the delay caused in giving joining on the post of Bigular Constable was due to the reason that he was suffering from Infective Hepatitis during intervening period. 8. 7. At this juncture, learned counsel for the petitioner submits that the case of the petitioner may be considered sympathetically, as the delay caused in giving joining on the post of Bigular Constable was due to the reason that he was suffering from Infective Hepatitis during intervening period. 8. The Court does not find any substance in the said submission of learned counsel for the petitioner, as not only the petitioner did not give joining within six months from the date of issuance of merit list in terms with the aforesaid advertisement, rather he has filed the present writ petition after delay of more than eleven years. 9. In the case of City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala & Others, (2009) 1 SCC 168 , the Hon’ble Supreme Court has held as under:- “26. It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.” 10. In the case of State of Orissa & Another Vs. Mamta Mohanty, (2011) 3 SCC 436 , the Hon’ble Supreme Court has held as under:- “53. Needless to say that the Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1-1-1986 by filing a petition on 11-11-2005 but the High Court for some unexplained reason granted the relief w.e.f. 1-6-1984, though even the Notification dated 6-10-1989 makes it applicable w.e.f. 1-1-1986.” 11. Thus, it is now well settled that the power under Article 226 of the Constitution of India is discretionary in nature and the Limitation Act, 1963 does not apply under writ jurisdiction. However, any writ petition filed after inordinate and unexplained delay is liable to be dismissed. 12. Though the petitioner has stated in the writ petition that he had approached the office of the respondent no.5 by filing a representation on 19 th November, 2008 and had requested to accept his joining explaining the reason for the delay, however, the said explanation cannot be said to be a valid one to justify such huge delay of 11 years in taking recourse of law. There is a well-known maxim "Vigilantibus non dormientibus jura subveniunt" which means that the law aids the vigilant, not those who sleep over their rights. Had the petitioner moved before this Court within a reasonable time, his grievance would have been considered by this Court, however after a huge delay of 11 years in filing the writ petition that too without any reasonable explanation, he is not entitled to any relief from this Court. 13. Otherwise also, as per the affidavit filed in the writ petition it is evident that at present the age of the petitioner is about 40 years and, therefore, at the time of filling the form for appointment on the post of Bigular constable vide Advertisement No. 2/08, his age was about 25 years. Thus, obviously the capability and physical strength of the petitioner would have declined over the period. Hence, if the petitioner is permitted to join the post of Bigular Constable now, there is every possibility that he will not be physically suitable for the said post. Thus, obviously the capability and physical strength of the petitioner would have declined over the period. Hence, if the petitioner is permitted to join the post of Bigular Constable now, there is every possibility that he will not be physically suitable for the said post. Thus, granting any relief to the petitioner at this belated stage will also be detrimental to the interest of the organization i.e. JAP-1. 14. Under the facts and circumstances of the case, this Court is of the view that the petitioner has failed to make out any case seeking quashment of the impugned letter no.4487 dated 29 th July, 2009. 15. The present writ petition being devoid of merit is, accordingly, dismissed.