Aijaz Ahmad Malik vs State of JandK

M.M. Kumar, C J.

This order shall dispose of LPA No. 53/2011 relatable to SWP No. 106/2007 filed by one Naza Bano, LPA No. 54/2011 which has also

been filed by Naza Bano relatable to SWP No. 153/2007 and another appeal preferred by one Aijaz Ahmad Malik namely LPA No. 121/2011,

which is relatable to SWP No. 386/2007. It is appropriate to mention that the Writ Court has disposed of all the writ petitions by a common

judgment dated 11.02.2011 dismissing SWP No. 106/2007 filed by Naza Bano wherein she had claimed regularization on the post of General

Line Teacher after having rendered five years service as Rehbar-e-Taleem. The learned Single Judge had also dismissed SWP No. 386/2007 fled

by Ajaz Ahmad Malik, wherein he had prayed for a declaration to set aside the initial appointment of Naza Bano on the post of Rehbar-e-Taleem

on 26.11.2001. However, the writ petition, SWP No. 153/2007, filed by one Nissar Ahmad Malik has been allowed setting aside the

appointment of Naza Bano on the position of Rehbar-e-Taleem. The ground of setting aside her appointment is that in the merit list of ten

candidates her name figured at the lowest as she had secured 241 marks out of 600 in 10+2. The learned Writ Court has rejected the preliminary

objection raised by Naza Bano and State by observing that Nissar Ahmad Malik persistently followed the administrative remedies of filing

representations and then persuading the authorities to conduct vigilance enquiry. It was on the basis of enquiry concluded in the year 2007 that

Nissar Ahmad Malik filed the writ petition because the Deputy Chief Education Officer, after recording findings against Naza Bano, has thrown out

the claim made by Nissar Ahmad Malik on the ground of delay. However Writ Court reversed that view and has placed reliance on the

observations made by Hon’ble the Supreme Court in the cases of Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, ,

Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, , The Moon Mills, Ltd. Vs. M.R. Meher, President,

Industrial Court, Bombay and Others, , Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service, Amravati and

Others, and Shiv Dass Vs. Union of India (UOI) and Others, to conclude that there is no rule of law that delay and laches must prove fatal in every

case. The conduct of a party should be of such a nature, which might fairly be regarded as equivalent to waiver. Delay may also assume

significance if third party right has come into existence. In that regard reliance has also been placed on the other judgments of Supreme Court in

Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, and Ashok Kumar Vs. State of Bihar and Others, .

The learned Writ Court referred to the pleadings and recorded findings that the advertisement notice inviting applications for the post of Rehbar-

e-Taleem in Girls School, Khul was issued on 26.11.2001, which was also the last date of receipt of applications. The panel of candidates was

prepared on 27.11.2001 followed by selection list on 29.11.2001. The engagement order was issued in favour of the least meritorious candidate

who was at the bottom of the list, Ms. Naza Bano, on 03.122001. The committee comprising of District Development Commissioner and Chief

Education Officer, selected Ms. Naza Bano on 26.11.2001 when the process of preparation of the select list was yet to be completed. It was thus

held that the process of selection in question was marred by illegality and flagrant violation of equitable clause enshrined under Article 14 & 16(1)

of the Constitution and that respondent Nos. 3 and 4 i.e. Deputy Commissioner, Anantnag and Chief Education Officer, Anantnag acting in

collaboration with the then District Development Commissioner threw all the rules to winds while making the selection and in the brazen process

violated the fundamental rights of more meritorious candidates such like Nissar Ahmad Malik. As a consequence of the findings recorded by the

learned Single Judge, the writ petition filed by Nissar Ahmad Malik, namely SWP No. 153/2007 has been allowed setting aside the appointment

of Naza Bano on the position of Rehbar-e-Taleem. However the writ petition filed by Ajaz Ahmad Malik namely SWP No. 386/2007, which is

relatable to LPA No. 121/2011 has been dismissed on the ground that he never participated in the selection process. Likewise the prayer of Naza

Bano in SWP No. 106/2007 relatable to LPA No. 53/2011 seeking regularization on the post of General Line Teacher has been rejected.

Respondent Nos. 3 and 4 had issued advertisement notice on 26.11.2001 inviting applications for filling up one post of Rehbar-e-Taleem in

Girls Middle School, Khul from amongst unemployed qualified youth of the village. The minimum qualification prescribed was 10+2 and the last

date for receipt of applications was also the same namely 26.11.2001 when the advertisement notice was published in the newspaper. The name

of Naza Bano appeared at serial No. 10 because her merit was the lowest as she had secured 241 marks out of 600 in 10+2 whereas there were

nine other candidates who were more meritorious than her. Sh. Nissar Ahmad Malik in his petition has expressly explained why he has not been

able to approach the Court in the year 2001 or later within reasonable time and that explanation has been accepted by the learned Writ Court. The

learned Writ Court has recorded a clear finding that a total number of ten applications were received and the official respondents prepared a panel

of all the candidates on 27.11.2001 in presence of the village level committee. It was then submitted to the Chief Education officer, Anantnag and

all the empanelled candidates were having 10+2 Qualification except one Sh. Farooq Ahmad Bhat. Ms. Naza Bano, who was at the bottom of the

list having secured 241 out of 600 marks in 10+2 was nonetheless selected vide order dated 29.11.2001. Sh. Farooq Ahmad Bhat, who has

passed 2nd year of B.A. examination, occupied first position in the panel. Sh. Shameem Ahmad Malik with 338 marks out of 600 in 10+2 was at

serial No. 2. The learned Single Judge accepted the explanation for delay because the objections were raised to the engagement of Miss Naza

Bano immediately. There were also complaints addressed to the Chief Education Officer, Anantnag and State Vigilance Organization. In pursuance

of communication dated 22.11.2006 sent by the State Vigilance Organization an enquiry was held into the matter. The Deputy Chief Education

Officer with headquarter at Kulgam (Sh. A.R. Shah) was asked to hold the enquiry. He found that Zonal Education Officer had committed grave

irregularity by not including the name of Nayeema Akhter, Hilal Ahmad Malik and Aijaz Ahmad Malik, who had higher qualification/merit in the list

of available candidates. The panel prepared by the committee of District Development Commissioner, Anantnag and Chief Education Officer,

Anantnag showed that Naza Bano was at the bottom of the merit list and ignoring all the nine meritorious candidates, the committee selected Naza

Ba no. The enquiry report further revealed that the decision to select Naza Bano was taken on 26.11-2001 although the panel itself was prepared

on 27.11.2001. When the enquiry was in progress, the enquiry officer asked each of the candidates higher in merit to signify their intention to

surrender their claim for appointment to the position of Rehbar-e-Taleem at Girls Middle School, Khul. Except Nissar Ahmad Malik, all other

surrendered their respective claims. The challenge to the enquiry report at the instance of Naza Bano had been repelled and the argument of delay

and laches has also been rejected by the learned Writ Court by observing as under:-""It is however pertinent to point out that the rule to decline

consideration to a belated claim on the grounds of laches is not a rule of law but a rule of practice to guide proper exercise of discretion. It has

been held that there is no inviolable rule that whenever there is delay the court must necessarily refuse the relief. The rule of practice has its edifice

on the principle that the rights which may have accrued to others by a reason of the delay in filing the petition should not be allowed to be disturbed

in absence of reasonable explanation for the delay. The petitioner, alleging violation of fundamental rights, is expected to move the court before

other rights come into existence. A reference in this regard is made to Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, . The

following observations of Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong; Hurd, (1874) 5 PC 221 quoted with

approval in The Moon Mills, Ltd. Vs. M.R. Meher, President, Industrial Court, Bombay and Others, , Maharashtra State Road Transport

Corporation Vs. Balwant Regular Motor Service, Amravati and Others, and in Shiv Das v. Union of India (2007) 9 SCC 27, sums up the

principle on the subject: ""Now the doctrine of laches in courts of equity is not an arbitrary or 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 where 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, if founded upon mere delay, that delay of course not amounting to a bar by

any statute of limitation, 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."" In Ramchandra Shankar Deodhar and Others Vs. The

State of Maharashtra and Others, , a writ petition filed after a delay of more than 10 years was resisted on the ground of laches. The Supreme

Court rejecting the preliminary objection held:

There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint and this delay, contended the

respondents, was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. We do not think this contention

should prevail with us... there is no inviolable rule that wherever there is delay the Court must necessarily refuse to entertain the petition. Each case

must depend on its own facts.....There is no lower limit and there is no upper limit.....it will depend on what the breach of the fundamental right and

the remedy claimed are and how the delay arose"". The court further observed, ""the claim for enforcement of the fundamental right of equal

opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel

in the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of

laches, delay or the like.

In Ashok Kumar Vs. State of Bihar and Others, , where the writ petition was dismissed on the ground of delay and laches and appeal against writ

court judgment was also dismissed, the Supreme Court held:

The writ petition as well as writ appeal ought not to have been dismissed by the Division Bench as well as the Single Judge of the High Court on

the ground of delay and laches because the delay of 4 years in moving the writ application against the decision of the State Government was

sufficiently explained by the appellant-writ petitioner. Since the appellant writ petitioner filed a representation/review of the decision of the State

Government it was expected by her than an order should be passed on the said representation/review. The High Court committed an error in

holding that the pendency of the review/representation of the appellant-writ petitioner could not be taken to be a ground for condoning the delay

after 4 years of the decision of the State Government.

According to the Writ Court, it was Nissar Ahmad Malik, who, embarking on a long drawn struggle to fight against the injustice, had pursued

the matter steadfastly when all other meritorious candidates felt tired or lost hope in the system. He first raised his voice against the injustice by

approaching the respondents to issue duplicate copies of the documents that weighed with them to appoint Naza Bano, who was at Sr. No. 10

and ignore a candidate who was at Sr. No. 1 in the order of merit. The application was duly forwarded on 20.03.2002 by the Headmaster

concerned to the Zonal Education Officer. He also approached the District Development Commissioner, Anantnag with a complaint against Zonal

Education Officer, D.H. Pora alleging that Ms. Naza Bano has been appointed fraudulently. In his application, received by the District

Development Commissioner on 1012.2001, he made the complaint. The District Development Commissioner, Anantnag forwarded the application

to S.P. Vigilance for necessary action under law. The writ petitioner-respondent, however, pursued the matter before the State Vigilance

Organization and it was only when the State Vigilance Organization after enquiring into the matter sent a communication to the Chief Education

Officer, Anantnag to hold an enquiry, the enquiry was initiated. Nissar Ahmad Malik and others were associated with the enquiry to dig out the

facts and lay bare the irregularity committed by the Deputy Commissioner, the Chief Education officer and the Zonal Education Officer, D.H. Pora

in the selection process. It was in these facts and circumstances that the Writ Court concluded that Nissar Ahmad Malik cannot be said to have

slept over the matter or could be accused of lethargy in pursuing the matter. After conclusion of the enquiry in the year 2007 vindicating his stand

and other unemployed youth of village Khul, Nissar Ahmad Malik felt embolden and filed the writ petition. A copy of the enquiry report dated

i5.01.2007 has been placed on record (Annexure-J). Therefore, there was no delay and laches in the present case.

We have heard Mr. G.A. Lone, Mr. P.S. Ahmad, Mr. S.A. Makroo and Allaudin Ganie, Deputy Advocate General, appearing for various

parties.

Mr. Lone has vehemently argued that when the scheme of Sarva Shikhsha Abhiyan was launched no one was interested in acquiring the post of

Rehbar-e-Taleem for a meager sum of Rs. 1500/-. For the post of Rehbar-e-Taleem all candidates/unemployed youth were not interested and

therefore on 27.11.2001 Naza Bano showed willingness and was selected. Learned counsel has also argued that delay of six years in approaching

the Court by Nissar Ahmad Malik must be considered fatal because Naza Bano has acquired a valuable right of regularization as a General Line

Teacher because she had completed five years required service. In support of the submissions, learned counsel placed reliance on various

judgments of Hon'ble the Supreme Court rendered in the cases of M.K. Krishnaswamy, etc. Vs. The Union of India (UOI) and Another, ,

Kunhayammed & Ors. v. State of Kerala & Anr., AIR 1990 SC 10, K.N. Guruswamy Vs. The State of Mysore and Others, and Roshni Devi

and Others Vs. State of Haryana and Others, to argue that delay in such like cases would prove fatal. Another argument raised by learned counsel,

Mr. Lone is that the post of Rehbar-e-Taleem is not a civil post. It is a service to be rendered by unemployed youths to the village community at a

meager sum of Rs. 1,500/-. Therefore, constitutional mandates under Article 14 and 16(i) would not be attracted.

Mr. P.S. Ahmad, learned counsel for Aijaz Ahmad Malik, writ petitioner-appellant in LPA No. 121/2011 has argued that the learned Single

Judge has ignored a vital fault in issuance of advertisement notice and fixing the last date for inviting application. According to the learned counsel,

the last date of inviting applications cannot be the same on which the advertisement notice has been published, which itself vitiate the requirement of

fair play envisaged by Article 14 of the Constitution. According to the learned counsel, a reasonable and fair opportunity is required to be provided

to all those, who were eligible to apply and compete for the post. Even the State largesse cannot be distributed arbitrarily and some minimum

regard to the constitutional requirements would be absolutely necessary.

Mr. Makroo, learned counsel for Nissar Ahmad Malik has supported the view taken by the learned Writ Court and has argued that once the

enquiry has been completed on 15.01.2007 and no action was taken on the enquiry report the question of any delay will not arise because the writ

petition was filed in the year 2007 itself. According to Mr. Makroo, cause of action had arisen on the finalization of the enquiry report and on

account of inaction on the part of the authorities. Therefore, Mr. Makroo has maintained that the appeals are liable to be rejected and do not

warrant admission. He also placed reliance on the observations made by Hon'ble the Supreme Court in the case of Tukaram Kana Joshi and

Others thr. Power of Attorney Holder Vs. M.I.D.C. and Others, and has argued that delay is not always fatal and if valid explanation is available

then such like delay must be ignored.

Having heard learned counsel for the parties and keeping in view the nature of illegality committed by respondent Nos. 3 and 4, we are of the

view that opinion expressed by the learned Single Judge warrants no interference.

It is well settled that ""fraud avoids all judicial acts, ecclesiastical or temporal"" observed Chief Justice Edward Coke of England about three

centuries ago. The aforesaid observations have been quoted by Hon'ble the Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by

L.Rs. Vs. Jagannath (dead) by L.Rs. and others, . These principles have been repeatedly followed to exclude the principle of natural justice. In that

regard we place reliance on the observations made by Hon'ble the Supreme court in the case of State of Chhatisgarh and Others Vs. Dhirjo

Kumar Sengar, , where the writ petitioner has committed fraud on the department by obtaining appropriate order of compassionate appointment in

his favour, the Supreme Court observed that keeping in view the Constitutional scheme, the writ petitioner not only committed fraud on the

department but also committed fraud on the Constitution. Once the commission of fraud by him has been proved categorically then principles of

natural justice has no place and were not required to be complied with. Similar principles have been followed in the case of India Household and

Healthcare Ltd. Vs. LG Household and Healthcare Ltd., . In the case of Ganpatbhai Mahijibhai Solanki Vs. State of Gujarat and Others, , it has

been held that even delay would not come in the way when fraud has been committed because human rights of applicant were involved.

In the present case it has come on record that advertisement notice has been issued on 26.11.2001 fixing the last date for receipt of

applications as 26.11.2001 itself. In the panel of 10 candidates Naza Bano was the least meritorious being at Sr. No. 10. The learned Single Judge

has rightly concluded that selection of Naza Bano, who was at Serial No. 10, defies ignorance. Moreover the selection was made on 26.11.2001

itself whereas the panel was submitted by the Committee in consultation with Village Level Committee on 27.11.2001. The view taken by the

learned Single Judge does not warrant interference in concluding that virtually there was no delay because on the directions of the State Vigilance

Organization the enquiry was conducted and all the facts were ascertained in the report dated 15.01.2007.

We are not inclined to accept the view of the learned Single Judge with regard to dismissal of SWP No. 386/2007 because the learned Single

Judge has failed to take notice of the fact that reasonable opportunity to file application for the post of Rehbar-e-Taleem was not given and the last

date for filing of applications was the same when the advertisement notice was published. It cannot be regarded as reasonable opportunity on the

touch stone of Articles 14 and 16(1) of the Constitution. Accordingly, the writ petition deserves to be allowed and to that extent we modify the

view taken by the learned Single Judge. For the reasons stated above, LPA Nos. 53/2011 and 54/2011 do not deserve to be admitted. However,

LPA No 121/2011 is allowed and the view taken by the learned Single Judge in SWP No. 386/2007 to that extent is set aside. Imposition of

costs and other findings are upheld.