Arjun Singh vs State Of H.P. & Anr

Jyotsna Rewal Dua, J

The petitioner was appointed as a Trained Graduate Teacher (Arts) on contractual basis against a post meant for persons with disabilities (orthopedically handicapped persons) in a selection process undertaken by the respondents in the year 2011. He has filed instant petition claiming his appointment as such on regular basis w.e.f. the year 2007.

2(i) The respondents initiated a selection process for filling-in posts of TGT (Arts) from persons with disabilities (PWDs) under the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 1995. The advertisement in this regard was issued on 18.12.2007. All the 27 backlog posts advertised for PWDs were to be filled-up from persons belonging to scheduled caste category i.e. 9 each for orthopedically handicapped, visually impaired and hearing impaired, respectively.

The petitioner is orthopedically handicapped and belongs to general category. His name was sponsored by the employment exchange. The petitioner, as such, participated in the selection process. His name did not figure in the merit list and accordingly offer of appointment was not made in his favour.

2(ii) In the year 2008, the respondents again started a selection process for filling-in backlog posts meant for physically handicapped persons. 14 posts of PWDs were advertised for TGT (Arts), out of which for general category candidates:- three posts were meant for orthopedically handicapped, two for visually impaired and two for hearing impaired Remaining seven poss of persons with disabilities were meant for candidates belonging to scheduled caste category.

Petitioner's name was sponsored by the employment exchange. However, his name did not figure in the merit list and accordingly, he was not appointed to the post.

2(iii) Petitioner again participated in the selection process undertaken by the respondents in the year 2011 for filling-in backlog posts meant for persons with disabilities. He was interviewed and was eventually offered the appointment on contract basis against the post of TGT (Arts). He accepted it and joined as such in the year 2011.

2(iv) The petitioner now prays that he was required to be appointed as TGT (Arts) on regular basis w.e.f. 2007. The relief clause of the present petition filed in March 2012 runs as under:

"(i) That a writ in the nature of mandamus may kindly be issued directing the respondents to offer appointment to the petitioner on regular basis from the due date of his appointment i.e. w.e.f. 2007 as the petitioner has been recruited against the post reserved physically challenged persons with all consequential benefits of seniority, back wages etc."

The precise contention of learned counsel for the petitioner is that:-

In the selection process undertaken by the respondents during the years 2007 and 2008, the posts meant for persons with disabilities were further reserved for the applicants belonging to scheduled caste category. This reservation was impermissible in view of the mandate of the judgment passed by the Hon'ble Supreme Court in AIR 2007 SC 3136, titled Mahesh Gupta & ors. v. Yashwant Kumar Ahirwar & Ors. As per the ratio of this judgment, no further reservation within the class of physically challenged persons was pemissible. Therefore, petitioner deserves to be appointed on regular basis w.e.f. 2007/2008 as a general category candidate against the posts for PWD advertised during the years 2007 and 2008.

Another contention raised by learned counsel for the petitioner is that the post against which the petitioner was appointed in the year 2011 was a backlog post, therefore, instead of contractual appointment, the petitioner should have been appointed on regular basis.

On the basis of above contentions, prayer has been made for appointing the petitioner on regular basis w.e.f. 2007.

The respondents in their short reply have submitted that:-

4(i) Petitioner participated in the selection processes undertaken in the year 2007 and 2008. However, his name did not figure in the merit lists, and therefore, he was not offered appointment during these years. The petitioner participated in the selection process again in the year 2011, wherein he emerged successful and was accordingly offered appointment on contractual basis as TGT (Arts).

4(ii) Reservation to SC candidates up to the year 2008 in the physically handicapped category was given as per model roster. No reservation has been given after 2008 as per clarification issued by the government.

4(iii) The petitioner had accepted his appointment on contract basis offered to him in the year 2011. The claim made by the petitioner in the instant petition is barred by delay and laches. After acceptance of the appointment offered to the petitioner on contract basis, no cause of action accrued in his favour to maintain present petition filed in the year 2012.

5(i) In 2020 (2) Scale 728, titled Chairman/Managing Director, U.P. Power Corporation Ltd. And others Vs. Ram Gopal, Hon'ble Apex Court held that prolonged delay of many years cannot be overlooked or condoned. 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. Relevant paragraphs of the aforesaid judgment read thus :-

"14. Finally, the prolonged delay of many years ought not to have been overlooked or condoned. Services of the Respondent were terminated within months of his appointment, in 1978. Statedly, the Respondent made a representation and served UPPCL with a legal notice in 1982, however such feeble effort does little to fill the gap between when the cause of action arose and he chose to seek its redressal (in 1990).

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. In S.S. Balu Vs. State of Kerala, this Court observed thus:

"17. It is also well-settled principle of law that "delay defeats equity". ...It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment." (emphasis supplied)

5(ii). It is not in dispute that the petitioner had participated in the selection processes undertaken by the respondents in the years 2007 and 2008 for filling-in the posts meant for persons with disabilities. In both these selection processes, the posts of PWDs were further sub-divided for reserved category. The petitioner did not challenge the advertisement at the relevant time. He participated under the terms and conditions of the advertisements. He also accepted the results, whereby he was not selected for the posts in question. Even in the instant petition, the advertisements issued in 2007 and in 2008 have not been challenged. The selection process undertaken in terms of these advertisements have not been questioned. The selection process has culminated years ago. The selected candidates have not even been impleaded here. It is only subsequent to his own selection and appointment as TGT (Arts) in 2011 that the petitioner chose to file the instant petition praying for his appointment on regular basis w.e.f. 2007 on the grounds that the posts meant for persons with disabilities advertised in the years 2007 and 2008 could not have been sub-divided into the reserved category, in view of the judgment passed by the Hon'ble Apex Court. The relief claimed by the petitioner in the instant petition is hopelessly barred by the delay and laches. No explanation for the delay has been furnished in the petition. The selection process was undertaken in the years 2007 and 2008. As observed earlier, the petitioner participated in the selection process without any demur or objection to the terms of the advertisement. Cause of action, if any, was available to the petitioner in the years 2007 and 2008. Petitioner did not raise the issue at an appropriate time and accepted the selection process so undertaken by the respondents, accepted the result thereof. Now after lapse of so many years, he cannot be allowed to dig up a stale claim when rights have accrued in favour of third parties. Without disturbing these persons, petitioner cannot be appointed on regular basis w.e.f. 2007/2008. Petitioner accepted his appointment in 2011 on contract basis. All others similarly situated in 2011 have been appointed on contract basis. For all these reasons, I do not find any merit in the instant petition and the same is accordingly dismissed. Pending application(s), if any, shall also stand disposed of.