Asha Devi. Vs. State of Jandk. - Court Judgment

Excerpt:
[markandey katju; gyan sudha misra, jj.] - mr. qadri, learned counsel for the appellant submitted that the copy of the report of the union public service commission was supplied to the respondent-employee along with the dismissal order. it may be noted that the decision in s.n.narula's case (supra) was prior to the decision in t.v.patel's case(supra). 1. petitioner has sought writ of mandamus commanding the respondents to appoint her as rehbar-e-taleem teacher (for short r.e.t teacher) on the grounds taken in the writ petition.2. it is averred that vide advertisement notice no. dsej/1570-82 dated 5th of may 2000 issued by respondent no.4 applications were invited from the permanent residents of district jammu for appointment as r.e.t teachers at village level in the district. a panel came to be drawn wherein the petitioner was figuring at serial no.1, but despite that she was not appointed. the petitioner made verbal requests but despite of that, her grievance was not redressed. but one tripta devi who was figuring at serial no.2 in the said panel came to be appointed in terms of an order passed by this court in writ petition swp no. 849/2003 titled tripta devi vs. state & ors. petitioner again made a request for appointment but despite the fact that two posts were lying vacant, the respondent no.4 instead of appointing the petitioner, issued a fresh advertisement notice vide no. dsej/ps/870-75 dated 22nd of november 2002- (annexure c).3. the respondents have filed the reply and resisted the petition on the grounds that the selection was made in the year 2000 whereas the petitioner approached the court in the year 2004, after noticing the judgment dated 25th of november 2003 passed in writ petition swp no. 849/2003 (supra). petition is belated and no cogent reason is given. in terms of government order no. 1670-edu of 2003 dated 24th of november 2003, government has issued clear cut ban on filling up the vacancies of general line teachers through r.e.t scheme and as such at present there is no vacancy of r.e.t teacher in the said school. tripta devi was appointed in pursuance to court directions and petitioner cannot claim parity because neither she has represented before the respondents nor approached the court within the reasonable time.4. petitioner has filed the rejoinder. petitioner has not brought on record any fresh material. however, it is averred that immediately after noticing the judgment, she applied for issuance of copy of the approved plan by the zonal education officer, r.s.pura, district jammu- respondent no.5. the writ petition merits to be dismissed for the following reasons.5. the petitioner has slept over the matter right from the year 2000 till filing of the writ petition i.e., 11th of june 2004. she has not explained as to why she failed to approach the court within the reasonable time. it appears that she has come out of deep slumber when she noticed the judgment in favour of tripta devi, who was figuring at serial no.2 in the select panel and got appointed in terms of the judgment passed by this court on 25th of november 2003, meaning thereby she was sitting on the fence and watching the proceedings and after observing that a candidate at serial no.2 has successfully won the battle has invoked the writ jurisdiction of this court.7. it is beaten law of the land that that a person who is watching at the fence for years to come, cannot seek equitable relief. the petitioner slept on her rights and as a result of delay, she is no longer entitled to any relief. the petition is caught by delay and laches and writ petition merits to be dismissed on this count alone. my this view is fortified by the judgment of the apex court in case titled ghulam rasool lone vs state of j&k;, 2009 air scw 5260 laid down the same principle. it is apt to reproduce the relevant portion of paras 14 and 18 herein: 14. the discretionary jurisdiction under article 226 of the constitution may, however, be denied on the ground of delay and laches. it is now well settled that who claims equity must enforce his claim within a reasonable time.18. while considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof. promotion of hamiddulah dar was effected in the year 1987. abdul rashid rather filed his writ petition immediately after the promotion was granted. he, therefore, was not guilty of any delay in ventilating his grievances. it will bear repetition to state that the petitioner waited till abdul rashid rather was in fact promoted. he did not consider it necessary either to join him or to file a separate writ petition immediately thereafter, although even according to him, abdul rrashid rather was junior to him. the division bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence. the apex court also in govt. of w. b. vs tarun k. roy, (2004) 1 scc 347; new delhi municipal council vs pan singh (2007) 9 scc 278; virender choudhary vs bharat petroleum corpn., (2009) 1 scc 297 and s. s. balu vs state of kerala, (2009) 2 scc 479, held that the delay defeats equity and that delay and laches are the relevant factors in exercising equitable jurisdiction. the apex court also in nadia distt. primary school council vs sristidhar biswas, air 2007 sc 2640, held that petitioners could not be given any benefit when they allowed more than nine years elapsing. it is apt to reproduce the relevant portion of para-4 herein:4. we have heard learned counsel for the parties. learned counsel for the appellants submitted that the persons who had not approached the court in time and waited for the result of the decision of other cases cannot stand to benefit. the court only gives the benefit to the persons who are vigilant about their rights and not who sit on fence. mallick's case was decided in 1982, in 1989 dibakar pal filed the petition and thereafter in 1989 respondents herein filed the writ petition. thereafter petition filed by dibakar pal challenging the panel of 1980 was hopelessly belated. likewise the present writ petition filed by the respondents herein. the explanation that the respondents waited for the judgment in mallick's case or dibakar's case, is hardly relevant. .9. admittedly, the scheme has come to an end and in terms of blanket ban imposed by the government vide order no. 1670-edu of 2003 dated 24th of november 2003 (supra) no appointment can be made against the post of general line teacher in terms of r.e.t and it is worthwhile to mention that the writ petition came to be filed after the imposition of the ban. this writ petition, as such, is not maintainable. my view is also fortified by the division bench judgment of this court dated 16th of august 2010 in case titled riaz ahmed vs. state & ors, lpa no.172/2009. it is apt to reproduce para 5 of the said judgment here under:- 5. it is emphatically stated on behalf of appellant that there was no delay and latches on his part in preferring this writ petition. however, such delay has not been sufficiently and satisfactorily explained. on the other hand, mrs. goswami, learned deputy advocate general, appearing for the official respondents, has submitted that the very scheme for appointment of rehbar-e-taleem has already been stopped by the government in the year 2003 and the appellant not being selected in the selection process of 2000, there is no scope for his selection in the said post. moreover, he has approached this court only in the year 2005, as against his non-selection in the year 2000, when in the year 2003 itself, the scheme has already been dropped.10. having glance of the above discussion, this writ petition merits to be dismissed. accordingly, the same is dismissed along with all cmps.

Judgment:
1. Petitioner has sought writ of Mandamus commanding the respondents to appoint her as Rehbar-E-Taleem Teacher (for short R.E.T Teacher) on the grounds taken in the writ petition.

2. It is averred that vide advertisement notice no. DSEJ/1570-82 dated 5th of May 2000 issued by respondent no.4 applications were invited from the permanent residents of district Jammu for appointment as R.E.T Teachers at village level in the district. A panel came to be drawn wherein the petitioner was figuring at serial no.1, but despite that she was not appointed. The petitioner made verbal requests but despite of that, her grievance was not redressed. But one Tripta Devi who was figuring at serial no.2 in the said panel came to be appointed in terms of an order passed by this Court in writ petition SWP No. 849/2003 titled Tripta Devi vs. State & Ors. Petitioner again made a request for appointment but despite the fact that two posts were lying vacant, the respondent no.4 instead of appointing the petitioner, issued a fresh advertisement notice vide no. DSEJ/PS/870-75 dated 22nd of November 2002- (Annexure C).

3. The respondents have filed the reply and resisted the petition on the grounds that the selection was made in the year 2000 whereas the petitioner approached the Court in the year 2004, after noticing the judgment dated 25th of November 2003 passed in writ petition SWP No. 849/2003 (supra). Petition is belated and no cogent reason is given. In terms of Government order no. 1670-Edu of 2003 dated 24th of November 2003, Government has issued clear cut ban on filling up the vacancies of General Line Teachers through R.E.T Scheme and as such at present there is no vacancy of R.E.T Teacher in the said school. Tripta Devi was appointed in pursuance to Court directions and petitioner cannot claim parity because neither she has represented before the respondents nor approached the Court within the reasonable time.

4. Petitioner has filed the rejoinder. Petitioner has not brought on record any fresh material. However, it is averred that immediately after noticing the judgment, she applied for issuance of copy of the approved plan by the Zonal Education Officer, R.S.Pura, District Jammu- respondent no.5. The writ petition merits to be dismissed for the following reasons.

5. The petitioner has slept over the matter right from the year 2000 till filing of the writ petition i.e., 11th of June 2004. She has not explained as to why she failed to approach the Court within the reasonable time. It appears that she has come out of deep slumber when she noticed the judgment in favour of Tripta Devi, who was figuring at serial no.2 in the select panel and got appointed in terms of the judgment passed by this Court on 25th of November 2003, meaning thereby she was sitting on the fence and watching the proceedings and after observing that a candidate at serial no.2 has successfully won the battle has invoked the writ jurisdiction of this Court.

7. It is beaten law of the land that that a person who is watching at the fence for years to come, cannot seek equitable relief. The petitioner slept on her rights and as a result of delay, she is no longer entitled to any relief. The petition is caught by delay and laches and writ petition merits to be dismissed on this count alone. My this view is fortified by the judgment of the Apex Court in case titled Ghulam Rasool Lone vs State of J&K;, 2009 AIR SCW 5260 laid down the same principle. It is apt to reproduce the relevant portion of paras 14 and 18 herein: 14. The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and laches. It is now well settled that who claims equity must enforce his claim within a reasonable time.

18. While considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof. Promotion of Hamiddulah Dar was effected in the year 1987. Abdul Rashid Rather filed his writ petition immediately after the promotion was granted. He, therefore, was not guilty of any delay in ventilating his grievances. It will bear repetition to state that the petitioner waited till Abdul Rashid Rather was in fact promoted. He did not consider it necessary either to join him or to file a separate writ petition immediately thereafter, although even according to him, Abdul Rrashid Rather was junior to him. The Division Bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence.

The Apex Court also in Govt. of W. B. vs Tarun K. Roy, (2004) 1 SCC 347; New Delhi Municipal Council vs Pan Singh (2007) 9 SCC 278; Virender Choudhary vs Bharat Petroleum Corpn., (2009) 1 SCC 297 and S. S. Balu vs State of Kerala, (2009) 2 SCC 479, held that the delay defeats equity and that delay and laches are the relevant factors in exercising equitable jurisdiction. The Apex Court also in Nadia Distt. Primary School Council vs Sristidhar Biswas, AIR 2007 SC 2640, held that petitioners could not be given any benefit when they allowed more than nine years elapsing. It is apt to reproduce the relevant portion of para-4 herein:

4. We have heard learned counsel for the parties. Learned counsel for the appellants submitted that the persons who had not approached the Court in time and waited for the result of the decision of other cases cannot stand to benefit. The Court only gives the benefit to the persons who are vigilant about their rights and not who sit on fence. Mallick's case was decided in 1982, in 1989 Dibakar Pal filed the petition and thereafter in 1989 respondents herein filed the writ petition. Thereafter petition filed by Dibakar Pal challenging the panel of 1980 was hopelessly belated. Likewise the present writ petition filed by the respondents herein. The explanation that the respondents waited for the judgment in Mallick's case or Dibakar's case, is hardly relevant. .

9. Admittedly, the Scheme has come to an end and in terms of blanket ban imposed by the Government vide order no. 1670-Edu of 2003 dated 24th of November 2003 (supra) no appointment can be made against the post of General Line Teacher in terms of R.E.T and it is worthwhile to mention that the writ petition came to be filed after the imposition of the ban. This writ petition, as such, is not maintainable. My view is also fortified by the Division Bench judgment of this Court dated 16th of August 2010 in case titled Riaz Ahmed vs. State & Ors, LPA No.172/2009. It is apt to reproduce para 5 of the said judgment here under:- 5. It is emphatically stated on behalf of appellant that there was no delay and latches on his part in preferring this writ petition. However, such delay has not been sufficiently and satisfactorily explained. On the other hand, Mrs. Goswami, learned Deputy Advocate General, appearing for the official respondents, has submitted that the very Scheme for appointment of Rehbar-e-Taleem has already been stopped by the Government in the year 2003 and the appellant not being selected in the selection process of 2000, there is no scope for his selection in the said post. Moreover, he has approached this Court only in the year 2005, as against his non-selection in the year 2000, when in the year 2003 itself, the Scheme has already been dropped.

10. Having glance of the above discussion, this writ petition merits to be dismissed. Accordingly, the same is dismissed along with all CMPs.