Farida Shawl vs State of J&K & Ors.

By this petition the petitioner seeks writ of Mand amus or any other writ to declare the Government Order No.: 59 HME of 1983, dated: 13

9.1983, as illegal, improper as also inoperative and ineffective against the rights and interests of the petitioner and to command that the petitioner is

entitled to continue on the post of Lecturer, to which she stands appointed in terms of Govt. Order No.: 363HME of 1987dated: 248.1987.

The facts in brief which are given in the present petition are that the petitioner who after qualifying her MBBS course was appointed as Lecturer

vide Govt. Order No.: 244HME of 1982 dated: 17.4.1982 in the Deptt. of Gynaecology and Obstetrics, Medical College, Srinagar. In the month

of May, 1983, the petitioner had proceeded on one months' leave to United States of America for seeing her brother. She had extended her leave

for a further period of three months and she was never informed that her leave application had been rejected, but she could not rejoin her duties

back believing that her leave applied for was due to her and presumed that the leave has been sanctioned, as she was entitled to avail it. It is further

averred in the petition that the petitioner after reaching Srinagar, she found that the respondents without any authority and power had terminated

her services in terms of Govt. Order No. :591HME of 1983, dated: 13.9.1983. She tried to persuade the respondents to revoke the order as it

was illegal, improper and arbitrary, but the requests so made were turned deaf ear by the respondents. The petitioner was prayed for revocation of

order of termination which has been passed arbitrarily and without following the procedure established by law, which the respondents were not

agreeing to. On the other hand, number of doctors who had also gone on foreign assignments and whose services were terminated, came to be

absorved against the posts held by them, but the same treatment was not, however, given to the petitioner and she has been discriminated and has

not been given same and equal treatment as is evnisaged under Art. 14 and 16 of the Constitution The petitioner had not proceeded on foreign

assignment in the month of May 1983, but had gone to see her brother in USA. and had returned in the month of September 1983. The

discriminatory treatment given to her by the respondents shocked her most and she too, therefore, tried to seek foreign assignment and as

succeeded in getting one in Saudi Arabia, as per her averments in the petition.

Since the petitioner had inclination to serve the State of J&K she came back and requested the respondents to consider her case on humanatarian

grounds and to appoint her on the post of Lecturer by revoking the order dated : 13.9.1982, but instead of her being appointed as Lecturer on the

post she was holding in the month of May 1983, where from she was terminated in the month of September 1983, she was appointed as adhoc

Lecturer for six months vide Order No.; 363HME of 1987, Dated, 24.8 1987.

The petitioner has further reiterated in her petition that though the petitioner has been appointed for a period of six months in terms of the order

dated: 24.8.1987 and that the period six months have not expired on the date of filing of the petition, yet she was feeling in secure that she will not

be given extension in her appointment and that after the expiry of six months, the respondents would terminate her services once again, therefore,

she sought the indulgence of the court for redressal of her grievences through the medium of the writ petition in hand.

This writ petition was filed on 11.1.1988, wherein the order of termination bearing No.: 591HME of 1983, dated: 13.9 83 is being assailed. On

the counts that the order impugned being patently invalid and consequently ineffective, inoperative and null and void against the rights and interests

of the sick petitioner sick although she stands appointed in terms of order No.: 363HME of 1987, dated 24.8.1987 on adhoc basis for a period of

six months, the said period is to expire in the month of February 1988, the petitioner has been told that she will not be given extension and she

would again be terminated. The petitioner is not only entitled to continue on adhoc arrangement, hut is entitled to be restored to her original

position which she was holding on 9 5.1983, before proceeding to USA and the order of her adhoc appointment dated: 24.8.1987, be deemed to

be an order of appointment restoring the petitioner's status, and not an order of adhoc appointment for a period of six months and the period of

adhoc appointment"" mentioned in the order dated : 24.8.1987 is liable to be deleted from the said order and the petitioner be declared to have

regularly been appointed to the post of Lecturer, Gynaecology and Obstetricsa and she is further entitled to the emoluments and benefits which she

would have earned, had the order No. : 591HME of 1983, dated, 13.9.1983, been passed against her and so on.

The petition was admitted on 1 5 1991 as nobody appeared for the respondents nor objections have been filed regarding the admission of this

petition.

It may be reiterated that M/s Sayed Manzoor and Z.A. Qureshi had appeared for respondents 1 and 2, respectively and they were given four

weeks time for filing objections on 16.8.1989. After the admission of the writ petition, notices were issued to the respondents. They had appeared

through Mr. Kotwal, Govt. Advocate. Time was given to them for filing counter on 16.8.1991, but they failed to comply the directions. Mr.

Kotwal, Govt. Advocate, had reiterated before the court while defending the case of the respondents that he had issued communications to the

respondents for making him available the records so as to enable him to prepare the counter, but he has received no communication or reply, from

the respondents and it resulted in the closure of right to file the counter on 30.9.1991. The case came up for hearing on 10.3.1992, but from the

perusal of the records, it transpired that writ petition No.: 806 of 1987 filed by Dr. Nayeema Firdous was also pending and orders therein have

been passed on 17.9.1987, wherein order passed by Govt. under No.: 363HME of 1987, dated : 24 8 1987, which is under challenge in. the

present petition also is under challenge in the said writ petition. Though this fact has been suppressed by the petitioner in her petition. Said Dr.

Nayeema Firdous, also filed a CMP No.: 610 of 1988, wherein she had asked the court for being impleaded as partyrespondent to the present

petition and the orders passed on the said CMP reads

Issue notice to L/C for the petitioner and list on a date to be fixed by the D/R.

Till date entices have neither been if sued nor the matter listed, and instead, the said CMP seems to have been annexed with this petition and it was

ordered that same should be separated from the petition in hand for being disposed of first so that the matter is properly appreciated and disposed

of It was ordered in the said matter that notice be issued to Mr. M.A, Wani, who is counsel for said Dr. Nayeema Firdous, and the counsel for the

present petitioner Dr. Farida Shawl was also asked to file objections. This order came to be passed on 4.5 1992.

My intention was also drawn to WP No.; 806 of 1987 which stands disposed of on 31.5.1988. However, the CMP No.: 610 of 1988, which

was moved by Dr. Nayeema Firdous in WP No,; 28 of 19J8 titled Dr. Farida Shawl versus State and Ors. on 24.8.1988 for arraying her as

partyrespondent to the writ petition was yet to be disposed of. The registry was direct to notify the said CMP so that it can be disposed of as was

ordered on 29.6.1992. The file came up for consideration on 6.7.1992. Mr. Wani, appeared for Dr. Nayeema Firdous in CMP No: 610 of 1988

and stated at the bar that he has no instructions from his client, so the CMP No.: 610 of 1988 was accordingly dismissed and the main petition was

heard.

I have asked for the records also as because no counter was filed in the case. Records were producer! regarding the case by Mr. Kotwal.

I had the privilege to go through the records also.

It may be brought on record that when Dr. Farida Shawl, the petitioner had proceeded on leave and as per her averments, she had returned and

came to know about the order of her termination in the month of September 1983, but she did not choose at that time to file the writ petition to

challenge the constitutionality of validity and legality of the order of termination. Instead she states that she had moved a review petition before the

respondent/state for reviewing her termination order which is impugned in he present writ petition.

From the perusal of the records, It transpires, that Dr. Farida Shawl had moved a petition under Rule 55 of the J&K Civil Service, Classification,

Control and Appeal Rules of 1956. This petition of review with a player for condonation of the delay for prefering the review petition seems to

have been moved by the petitioner on 17.9.1985, before the Health Minister besides praying for review of the Govt. Order No.: 59IHME of 1983

dated: 13.9.1983, thereby asking that after setting aside the order, the petitioner be restored to the status which she was holding prior to the

passing of the impugned order. The petitioner had further prayed that she may be permitted to resume her duties after the expiry of period of

contract which she had entered into for services in the foreign country. This period as per her averments was to expiry in May 1986, and she had

in the said petition slated that the said order could Dot be issued by the Government against the petitioner in absence of a full dressed enquiry as is

contemplated order section 126 of the Stale constitution read with Rule 33 of the J&K Civil Services Classification Control and Appeal Rules of

1956 and in the said petition, she has also specifically stated that she came to know about the termination of her services on 1391993, the

petitioner was left without any job and in order to fulfill her economic obligation, she had no alternaive, but to find a job and accordiugry the

petitioner had obtained the job in Saudi Arabia.

Thus from the review petition, it is clear that when the petitioner came to know about her terminal ion of services in September 1983, she did not

make any petition for reviewing the said order or made any representation for revoking the order to the Government, immediately after she came

to know about the passing of the adverse order against her which is being impugned in the present petition. This review petition was replied by the

Government as per records that she was let to know per communication No.: GS/MG/EXLec/603536 Dated; 2971986, that her application for

absorption in the said service will be considered in terms of Govt. Order No.: 102GD of 1986 Dt. 22.1.1986, in case she was inclined to join the

Department as a fresh entrant.

The Government Order No; 102GD of 1986 Dated: 2211986 reads as under :

'GOVERNMENT OF JAMMU AND KASHMIR'

GENERAL DEPARTMENT Government Order No. : 102GD/86 Dated: 2211986

It is hereby ordered that such of the doctors who had taken up foreign assignments and whose services, were terminated by the Govt. on their

return be reemployed in the Health and Medical Education Department, treating them for all purposes as fresh appointees.

Their reemployment will further be subject be the condition that the posts are available for their adjustment in the Department.

All pending and future cases will be decided accordingly. By Order of Jammu and Kashmir.

Sd/ Secretary to Govt.

In pursuance of the above Government Order, the petitioner was then appointed on adhoc basis as lecturer per Government Order No. 363HME

of 1987, Dated: 2481986. Against this Government Order No.: 363KME of 1987, Dated 2481987, two writ petitions came to be filed before the

court as WP No. : 876 of 1987 titled Khemma Munshi and others Versus State and others and WP No.: 806 of 1987, titled Nayeema Firdous

Versus State and others. These two writ petitions were filed by the above mentioned doctors against the appointment of petitioner Dr. Farida

Shawl as Lecturer the Department of Gynaecology and Obstetrics praying there that the term of respondent No. 3 Dr. Farida Shawl should not be

extended beyond six months.

The records of the file show that when Dr. Farida Shawl was served with the copy of the order dated: 17.9.1987 passed in CMP No.: 1934 of

1987 in WP No. : 806 of 1987, served under No. 32771 Dated : 21.9.19S7 to Dr. Farida Shawl, the report of the process server who had gone

to effect the service of this order to Dr. Farida Shawl, who had on 30.10.1987, been to said Dr. Farida Shawl in Lalded Hospital, Sgr, She after

having read the contents of the order refused receive the same. So this was known to Dr. Farida Shawl that she is respondent No. 4 in the writ

petition filed by Dr. Nayeema Firdous, which was numbered as WP No.; 806 of 1987, and in the said writ petition, the order of her appointment

on adhoc basis as Lecturer under No. 363HME of J987 dated : 24.8.1987, was under assail. This fact has been suppressed by her in her writ

petition which was filed in January 1988 and is numbered as SWP No. 28 of 1988. Not only this, she has also not made, a mention of the writ

petition purported to have been filed by Khemma Munshi and in fact the present writ petition which is WP NO. 28 of 1988 has been filed by the

petitioner only to ensure that her order of appointment on adhoc basis as Lecturer be not terminated after six month and she be allowed to

continue as per the said order of appointment. She wanted to ensure and put impediments to the writ petitions which were filed by Khemma

Munshi and Dr. Nayeema Firdous and in addition to this, she tried to dig the dead out of grave by asking for quashing/declaring the order of her

termination passed vide Govt. Order No. 591 of 1983 dated: 23.9.1983 as illegal and unconstitutional, but she has choosen to get her grievences

redressed at a very belated stage. The equitable rights which have accrued to other third parties are to be taken care of.

Ld. Counsel for the petitioner has referred to the decisions delivered in SWP NO. 169 of 1984 titled Dr. Zafar Mehadi versus State and others,

decided on 14.8.1988, and writ petition No. 53, 54 & 367 titled Dr. I.P. Kohli, versus State of J&K and ors. but in both the writ petitions, the

ratio laid down is not disputed and the law laid down is very sound and in both these petitions, the orders of their termination passed by the

Government have been challenged by the petitioners without wasting any time and without having been visited by laches. Dr. Zaffer Mehdi, has

challenged his order of termination passed by Government under No. J7HME of 1984 dated: 5.1.1984, by filing tie writ petition in 1984 itself and

similarly in case Dr. I. P. Kohli the termination order has been challenged in 1984.

In the case in band, the petitioner Dr. Farida Shawl having come to know about the termination order on 23.9.1983, choose to seek assignment in

Saudi Arabia, Her foreign assignment as per her review petition filed before the Government on 17.9.1985, was to expire in May 1986, and after

that she filed the present petition in the year 1988 i.e. after the lapse of four years and four months of the order of termination.

It is well settled law that if some one feels aggrieved with an administrative of executive decision, he shall act with due deligence and promptitude

and not sleepover the matter. Merely by filing repeated or delayed representations, the petitioner cannot get over the obstacle which delay in

approaching the court creatsbecause equitable rights on others had accrued. This has been laid down in AIR 1975 SC 1269. Number of

judgements laid down by the Supreme Court to which reference can be made safely are AIR 1967 SC 1450, AIR 1964 SC 1006, AIR 1982 SC

101, AIR 1970 SC 898 and AIR 1957 Calcutta 310.

In AIR 1957 Calcutta 310, it has been held:

A writ of mandamus is not a writ of right. A person invoking the special jurisdiction of the court for extra ordinary remedy by way of a writ is

required to be deligent.

In this Judgement, their lordships, of the Calcutta High Court have held that:

the High Court would not be inclined to come to the assistance of the petitioner by way of a writ, if he comes to the court after six months of the

order complained against.

Similarly in AIR 1970 SC 898 as has been safely quoted and relied upon in AIR 1982 SC 101, the lordships have held:

The view expressed by the High Court that a writ petition filed under Article 226 seeking redress on the ground of alleged infringement of

fundamental rights can not be dismissed by the court on this ground of latches, under any circumstances, is inconsistant with the pronouncements of

the Supreme Court on the subject and cannot be accepted as correct or sound.

While deciding the case, their Lordships in AIR 1982 SC 101 have made reliance on the above quoted judgement in AIR 1970 SC 898 and

followed that judgement. The appex court while quoting the judgement has expressed the view that :

The Supreme Court had occassion to deal with a contention that the right to move the Supreme Court under Article 32 of the Constitution being a

fundamental right, a writ petition filed in the Supreme Court under the said provision cannot be dismissed on the ground of delay or laches, since

such a course would amount to a denial of a fundamental right. Replying the said argument, Mitter J, observed thus:

I cannot however, find any merit in the contention that because there is an invasion of a fundamental right of a citizen he can be allowed to come

this court, no matter how long after the infraction of his right he applied, for relief. The Constitution is silent on this point; nor is there any statute of

limitation expressly applicable, but nevertheless, on ground of public policy

I would hold that this court should not lend its aid to a litigant even under Art. 32 of the Constitution in case of an inordinate delay ought normally

to be measured by the periods fixed or the institution of suits under the Limitation Act.

The Limitation Acts do not in terms apply to claims against the State in respect of violation of fundamental rights. A person complaining of

infractions any such rights has one of three courses open to him. He can either make an application under Art. 226 of the Constitution of a High

Court or he can make an application to this court under Art. 32 of the Constitution or he can file a suit asking for appropriate reliefs. The decisions

of various High Courts in India have firmly laid down that in the matter of the issue of a writ under Art. 226, the courts have a discretion and may in

suit able cases defuse to give relief to the person approaching it even though on the merits, the applicant has a substantial complaint as regards

violation of fundamental rights. Although the Limitation Act does not apply, the courts have refused to give relief in casts of long or unreasonable

delay

It was also observed in AIR 1964 SC 1996:

Maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a

reasonable standard by which delay in seeking remedy under Art. 226 can be measured. ""On the question of delay, we see no reason to hold that

a different test ought to be applied when a party comes to this court under Art. 32 from one applicable to applications under Art. 226.

Under the Limitation Act, unless there is in my view, a claim based on the infraction of fundamental rights ought not to be entertained if nude

beyond the period fixed by the limitation Act for this enforcement of the right by way of suit. While not holding that the Limitation Act applies in

terms, I am of the view that ordinarily the period fixed by the Limitation Act should be taken to be a true measure of the time within which a person

can be allowed to raise a plea sucessfully under Article 32 of the Constitution.

The Learned Judge has further observed that:

The history of these writs both in England land the USA convinces me that the underlying idea of the constitution was to provide an expeditious

and authoritive remedy against the inroads of the State. It a claim is barred exceptional circumstances, prima facie case it is a stale claim and should

not be entertained by this Court But even if it is not barred under the Indian Limitation Act, it may not be entertained by this court, if on the facts of

the case there is unreasonable delay.

The Learned Judge has also observed while speaking on behalf of the Court:

A Party seeking the intervention and aid of this court under Art. 32 of the Constitution for enforcement of his fundamental rights, should exercise

due deligence and approach this court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his

party, this court has the undoubted discretion to deny him relief.

In AIR 1970 SC 470 also, their Lordships have observed as under:

No relief can be given to petitioners who without any reasonable explanation, approach Supreme Court under Art. 32 of the Constitution after

inordinate delay. The highest court in this land has been given Original Jurisdiction, to entertain petitions under Art. 32 of the Constitution. It could

not have been the intention that Supreme Court would go into stale demands after a lapse of years. Though Art. 32 is itself a guaranteed right it

does not follow from this that it was the intention of the Constitution makers that Supreme Court should discard all principles and grant relief in

petitions filed after inordinate delay.

Similarly in AIR 1970 SC 769, their lordships while relying on the judgement of AIR 1067 SC 1450 have observed:

''It is true that the issue of a writ of certiorari is largely matter of sound discretion. It is also true that the writ will not be granted if there is such

negligence or ommission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances,

causes prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the court of

chancery.

So in light of these judgements and the ratio laid down by the Highest Court of the country, is that even if a fundamental right stands violated, the

person aggrieved of should approach the court without any delay and should follow the matter with deligence. He cannot sleep over the matter and

then approach the Court for asking a relief which he has himself made stale. Latches, the courts have refused to exercise their sick

In the present case, I find that the petitioner had come to know about her dismissal in the month of September 1983. She made a review petition

and that too time barred one and she has made an application for condonation of delay for preferance of the review petition and this she moved on

17.9.1985 that means after two years of the order of her termination. So she cannot claim that she was persuing her matter with Government till

she was informed that she cm be taken into service in pursuance of Govt. Order No. 102GD of U86 Dated: 22.1.1986, which has been quoted

above and the time which the petitioner had spent in making mercy petitions and other representations, thereby making her claim stale in coming to

the court of law for asking appropriate writ for getting the order of her termination, which may prima facie, be not tenable but by the delay, she has

caused, she is net entitled to the relief.

In AIR 1973 SC 1343, their lordships in a case where the petitioner, a dismissed Government servant after being informed that his services were

terminated for misconduct, spent about three years in sending memorandums to the Govt. a remedy not appointed by law, the High Court was

justifie in rejecting the writ petition filed there after. Their Lordships have laid down as under:

Thus it was in August 1963, that the appellant discovered that his services were realy determined for gross misconduct. For rearly 3 years

therefore, he kept on submitting one memorandum a ter another to the Govt. and it was not until late in 1966 that he '""filed a writ petition in the

High Court to challenge the order of removal. The memorandums presented by him to the Government were in the nature of mercy petitions and

he should have realised that in pursuing a remedy which was not duly appointed under the law, he was putting in peril a right of high value and

significance. By his conduct, he disabled the High court from exercising its extraordinary powers in his favour. We are, therefore, of the opinion

that the High Court was justified in refusing to entertain the petition.

So in light of the above ratio I find that the courts have refused to relief to the petitioners, even if their fundamental rights stand violateu but when

they have themselves made their claims stale and have made their claims hit by extraordinary writ jurisdiction.

In the petition in hand, the contention of the petitioner before me is that due course of law as laid down by the constitution of the state and the

service Regulations and the decisions delivered by the courts have not been followed in passing the termination order of petitioner but she has

come and agitated the matter for declaring the legal position of the order of her termination after a lapse of more than four years and four months

which is admittedly a delayed claim.

The petitioners in writ petitions titled Dr. Nayeema Firdous versus state and others and Khemma Munshi versus state and others who had agitated

the matters not only regarding her i.e. the petitioners fresh appointment and other equitable claims have arisen to them and to others who are not

parties before me. So the most that can be done in the present petition is that her order or termination though not tenable in the eyes of law and the

mandates of law, but cannot be interferred with due to her own fault for filing the petition which is hit and governed by doctrine of laches.

Learned counsel for the petitioner, has referred to the J&K Law Reporter January Part, 1971 and J&K Law, Reporter February Part, 1972. In

light of the law laid down by the Supreme Court and the ratio of the decisions as has been referred to and relied upon by this court in these

judgements, the authorities quoted by Mr. Farooqi stands replied accordingly.

For the foregoing reasons and in the circumstances, while disposing of the case, I would like to direct that the petitioner be allowed to continue per

her order of appointment bearing No.: 363HME of 1987 dated 2481987 and the words 'for a period of six months on adhoc basis' be deemed to

have been deleted and this order of appointment be deemed to nave been issued in pursuance of Govt. Order No. 102GD of 1986 dt. 2211986,

treating the petitioner as a fresh appointee under the aforesaid order. The petition is disposed of accordingly. The records be returned back to the

Government Advocate. In the circumstances of the case, there is no order as to costs.