Gul Sameena Tabasum and Others vs State and Others

Mansoor Ahmad Mir, J.—The subject matter in all these petitions is common, so I deem it proper to decide the same by this common

judgment.

Order No. SDA/VC of 2007/56 dated 5.6.2007 issued by the Vice Chairman, Srinagar Development Authority is the subject matter of all

these writ petitions, whereby Respondent Tariq Hussain Shamas came to be engaged as Planning Assistant on probation for a period of one year

subject to the confirmation of Srinagar Development Authority Board. The said order came to be passed in terms of the judgment and order

passed by this Court in SWP Nos. 1825/2003 and 118/2005, titled as Tariq Hussain Shams v. Stale and Ors. The Petitioners have questioned the

same on the grounds taken in the writ petition.

The main ground of attack is that Respondent Tariq Hussain Shamas was having experience of six months only at his back, whileas writ

Petitioners were having the requisite experience of about six years in the Town Planning Department and were eligible to be appointed on the said

post. They made repeated representations, but the Respondents failed to redress their grievance. Further it is contended that the promotion of

Respondent Tariq Hussain Shamas is a back door entry and pick and choose case. The said order is in violation of the rules occupying the filed.

Accordingly, it is prayed that the impugned order be quashed and official Respondents be directed to consider the claim of Petitioners and appoint

them as Planning Assistant.

Respondent-Srinagar Development Authority (for short, SDA) filed the reply and resisted the petition. It is averred that the Petitioners have not

made any representation before the Respondents prior to the appointment of Respondent Tariq Hussain Shamas. They made the representations

only after he came to be appointed. It is apt to reproduce para-2 of the reply herein.

In reply to para 2 it is submitted that the case of Respondent No. 8 has been processed at different levels right from the year 2000. That before the

engagement of Respondent No. 8 the Housing and Urban Dev. Department vide letter No. UD-102/2000/SDA part ii dated 26.12.2006 and No.

UD,-102/2006 dated 10.01.2007 constituted a committee of officers comprising of Vice Chairman SDA, Special Secretary SDA, Senior Town

Planner SDA for examining the qualification of the Respondent No. 8. A copy of the said communications are annexed as Annexure R1 and R2.

That the said committee after examining the qualification of the Respondent No. 8 the committee observed that the Respondent No. 8 namely Shri

Tariq Hussain Shamas Diploma in Architecture Assistantship, falls in the eligibility criteria of minimum qualifications required for the post of planning

assistant under draft recruit rules of SDA and the recruitment rules of Town Planning Organization Kashmir. The said record note of the meeting

was forwarded to the Housing Department vide endorsement No. SDA/VC/9280 dated 2.2.2007. A copy of the same is enclosed as Annexure

R3. It is further submitted that the Petitioners made a representation before the SDA after the engagement of Respondent No. 8 and that too in the

month of July 2007. It is further submitted that the allegations leveled in the para under reply are denied.

Respondent Tariq Hussain Shamas has also filed the reply and resisted the petition. It is contended that the Petitioners have no right to challenge

his appointment. He was having the requisite qualification, experience and has successfully undergone and passed three years Diploma in

Architecture Assistantship from J&K State Board of Technical Education in the year 1993 (annexure 'R1'). He has also undergone nine weeks

short term course on Computer Aided Drafting at the Centre for Electronics, Design & Technology in the year 1995 and Innovative Systel

(Autocad 2000 (3D-Modelling) Certificate Course (annexure 'R2' & 'R3'). He has also acquired and gained experience in the field of architecture,

has worked with Town Planning Organization of Government of J&K for a period of one year with effect from September 1997 to September

1998 as Architect Training and also served with Architects Group from January 2004 to February 2005. Further it is contended that his

appointment came to be made by the official Respondents in terms of the judgment and order passed by this Court in SWP Nos. 1825/2003 and

118/2005. Even the Chief Minister had requested the official Respondents to process his case on compassionate grounds in view of the fact that

his sister Dr. Nahida Shams became the victim of tragic and shocking road accident on 20.7.2000 near Vikram Chowk, Jammu (annexure 'R5',

'R6' & 'R7'). His case was accordingly considered by the Board of Directors of SDA in its 64th meeting held on 10.8.2000 at Agenda Item No.

22 and approved in 65th meeting. Accordingly his case was directed to be referred to the Screening Committee/Cabinet Sub Committee along

with the cases covered under Agenda Item No. 64.21 relating to regularization of Umran Rashid and Wahid Ali. When Respondents failed to take

any action he filed a representation, but in vain, constrained him to file SWP No. 1825/2003. During the pendency of that petition, the official

Respondents-SDA issued an order bearing No. SDA/VC/16 of 2004 dated 14.2.2004, whereby the cases of Umran Rashid and Wahid Ali came

to be considered and their services came to be regularized against the post of Junior Engineer (Civil). Though the case of Respondent Tariq

Hussain Shamas was also figuring in the said agenda, but was not considered and decided, constrained him to challenge the said order by the

medium of SWP No. 118/2005. Both the writ petitions came to be disposed of by the consent judgment and order dated 16.9.2005 and in terms

thereof the impugned appointment order in favour of Respondent Tariq Hussain Shamas came to be passed.

It is worthwhile to mention here that Mrs. Moksha Kazmi was appearing on behalf of Umran Rashid and Wahid Ali in those petitions.

I am of the considered view that all these writ petitions merit to be dismissed at this stage for the following reasons.

Admittedly, Respondent Tariq Hussain Shamas made so many representations before the official Respondents and Chief Minister praying that

he be appointed against the post of Planning Assistant on compassionate/humanitarian grounds. He not only sought his appointment on

compassionate grounds, but also on the ground that he worked in the SDA for a considerable period and has gained experience and was entitled

to appointment. The Chief Minister requested the official Respondents-SDA to process his case. He had also made so many representations

before the concerned authorities including the Housing Department for appointing him against the post of Planning Assistant. Accordingly, his case

came to be processed and considered by the Board of Directors of SDA in its 64th meeting and approved in 65th meeting and was referred to the

Screening Committee/Cabinet Sub Committee along with the cases relating to regularization of Umran Rashid and Wahid Ali. Respondents failed

to redress the grievance of Respondent Tariq Hussain Shamas, constrained him to file SWP No. 1825/2003. During the pendency of said petition,

official Respondents-SDA vide order dated 14.2.2004 regularized the services of Umran Rashid and Wahid Ali. He questioned the same by the

medium of SWP No. 118/2005. Umran Rashid and Wahid Ali were figuring as Respondents in the said petition. Both the petitions came to be

decided vide judgment and order dated 16.9.2005.

The writ Petitioners herein were not figuring anywhere and had not questioned the appointment of Umran Rashid and Wahid Ali. They have not

undergone the selection process, but are seeking appointment on the basis of parity and in view of the fact that they have also worked with official

Respondents-SDA.

There is nothing on the file suggesting the fact that the Petitioners have moved any representation. If they had moved any representation, then

they would have definitely questioned the order issued in favour of Umran Rashid and Wahid Ali. The Petitioners have not questioned the action of

SDA, whereby the cases of Respondent-Tariq Hussain Shamas, Umran Rashid and Wahid Ali came to be processed. Virtually the Petitioners

were waiting and watching at the fence, after noticing that Respondent Tariq Hussain Shamas has made successful inning, have filed these petitions.

The Petitioners slept and as a result of delay, they are no longer entitled to any relief. The petitions are caught by delay and laches and writ

petitions merit to be dismissed on this count alone.

The Apex Court in Ghulam Rasool Lone v. State of J&K AIR 2009 SCW 5260 laid down the same principle. It is apt to reproduce the

relevant portion of paras 14 and 18 herein:

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..

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 Government of West Bengal Vs. Tarun K. Roy and Others, ; New Delhi Municipal Council Vs. Pan Singh and

Others, ; Virender Chaudhary Vs. Bharat Petroleum Corporation and Others, and S.S. Balu and Another Vs. State of Kerala and Others, , 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 and Another Vs. Sristidhar Biswas and Others, laid the same principle. It is apt

to reproduce the relevant portion of para-4 herein:

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....

Having glance of the above discussion, the Petitioners have failed to make any case. Accordingly, these writ petitions are dismissed along with

all CMPs.

Interim direction, if any, is vacated.