Dinesh Kumar vs University of Delhi and Others

V.K. Shali, J.—This is a second round of litigation by the petitioner challenging the order dated 17th October, 2006 passed by the respondents wherein the petitioner has not found to be suitable for the post of Caretaker of the respondent/college, and accordingly, his termination order was passed. It was also observed in the impugned order that though the aforesaid termination did not tantamount retrenchment yet without prejudice to the rights and contentions of the respondents they were remitting a cheque for a sum of Rs. 11,731/- being the retrenchment compensation.

Briefly stated the facts of the case are that the petitioner was appointed as a Caretaker on 3rd August, 2004 in pursuance to advertisement dated 26th April, 2004 by the respondent/college in pursuance to a due selection process. Although the petitioner is claiming that he had been working with the respondent/college as Caretaker on an ad hoc basis from 1998, his appointment was made after granting the petitioner certain relaxation with regard to acquiring his basic eligibility qualifications. The petitioner has filed the first round of litigation bearing No. 153/2005 claiming that his services be regularized although he was placed by the respondents on probation. This culminated into a judgment passed by the learned Single Judge on 22nd September, 2006 wherein the learned Single Judge of this Court observed that the petitioner shall be treated to have continued on probation and the governing body of the respondent/college was to take a conscious decision afresh within two months regarding the suitability of the petitioner to the post he was holding.

In pursuance to the aforesaid direction the governing body of the respondent/college took a decision and passed the impugned order dated 17th October, 2006 terminating the services of the petitioner on the ground of suitability as well as non acquisition of the requisite qualification for which he was granted relaxation.

The petitioner feeling aggrieved by the aforesaid order of the learned Single Judge preferred an LPA bearing No. 2036/2006 against the order of the learned Single Judge which came up for hearing first time before the Division Bench on 19th October, 2006 in which notice to show cause as to why the appeal be not admitted was issued returnable for 17th January, 2007 and in the meantime the status quo was directed to be maintained with regard to the services of the petitioner.

The petitioner herein knowingly fully well that the impugned order dated 17th October, 2006 terminating his services had been passed did not challenge the said order but continued with the LPA for another period of more than two years ultimately withdrawing the appeal after addressing the arguments at length on merits on 19th January, 2009. It is after withdrawal of this LPA by the petitioner, who was the appellant in the said appeal, he has woken up to challenge the impugned order dated 17th October, 2006.

I have heard the learned Counsel for the petitioner as well as the learned Counsel for the respondent, who is present in response to the advance copy having been served.

The contention of the learned Counsel for the petitioner is that he did not choose to assail the order dated 17th October, 2006, earlier as there was an order of status quo and his appeal was sub judice. Therefore, if the order of the learned Single Judge itself would have been set aside he would have felt satisfied and the order dated 17th October, 2006 would have become none est. The learned Counsel has also drawn my attention to the averments in para 23 of the petition wherein it has been stated that since the Division Bench was not inclined to interfere with the order of the learned Single Judge and the Division Bench felt that it was better and more appropriate for the petitioner to challenge the order of termination dated 07.10.2006 therefore, he withdrew the appeal and is assailing the present order within three or four months from the date of the order, and thus, there is no inordinate delay or laches in assailing the order dated 17th October, 2006.

Per contra, the learned Counsel for the respondent/college has contended that the facts which have been averred by the petitioner and the oral observations of the learned Division Bench, are not reflected in the order dated 9th January, 2009 and therefore, cannot be taken cognizance of. In addition to this, it was urged by the learned Counsel for the respondents as a matter of fact the consistent stand of the petitioner has been that he was appointed on ad hoc basis in the year 1998 and the respondent/college has wrongly reflected his date of appointment as 3rd August, 2004.

I have carefully considered the respective submissions, there is no doubt about the fact that there is provision of Limitation Act and are not applicable to the writ petition. But this has been consistently observed by the Apex Court that an aggrieved party must assail the impugned order, there should not be inordinate delay or laches. The period within which a party must approach the Court will vary from case to case but certainly a party cannot be permitted to raise a stale claim. The Hon�ble Supreme Court in case titled State of Madhya Pradesh Vs. Bhailal Bhai and Others, had observed as under:

the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the Legislature as the time within which the relief by a suit in the Civil Court must be brought may ordinarily be taken to be a reasonable standard by which the delay is seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a Civil action for the remedy but where the delay is more than the period it will almost always be proper for the Court to hold that it is unreasonable

Coming back to the facts of the case, no doubt, the learned Single Judge passed an order dated 22nd September, 2006 directing the governing body of the respondent/college to take a conscious decision to decide the question of suitability and the continuation of the services of the petitioner which they passed in the impugned order dated 17th October, 2006 but the petitioner instead of challenging the said order persisted with his appeal which was filed after the passing of the said order without seeking appropriate remedial action either to bring the factum of new termination order before the Division Bench or to challenge the said impugned order dated 17th October, 2006. By not having done so or rather selecting to remain silent on the said matter for almost 2� years, it is now too late for the petitioner to challenge the said order by the way of present writ petition. The contention of the learned Counsel for the petitioner that the learned Division Bench has observed that it will be appropriate for the petitioner to challenge the impugned order dated 17th October, 2006 rather than the persisting with his appeal are not borne from the final order dated 9th January, 2009.

The contention of the learned Counsel for the petitioner that the impugned award makes a wrong statement of terminating the services of the petitioner, that the non-acquisition of qualification which he actually done in October, 2004 and submitted the requisite certificate, is not relevant because the petitioner has to first cross the initial hurdle of delay and laches. This is a writ petition which is based on inordinate delay and therefore the petition is hit by delay and laches.

For the foregoing reasons mentioned, I am of the considered opinion that the writ petition is hit by inordinate delay and laches and accordingly the same is dismissed.