Irshada Banoo vs State and Others

Mansoor Ahmad Mir, J.—Petitioner has invoked the writ jurisdiction of this Court in the year 1999 for quashing the Order No. 122-Ind of

1998 dated 27.03.1998 passed by Respondent No. 1 with a further relief of mandamus commanding the Respondents to regularize her services

against the post of Knitting Instructor as has been done in the case of Respondent No. 3. In the alternative, the Petitioner has prayed for a

direction commanding the Respondents to regularize her services against the post of Knitting Instructor with effect from 01.04.1994 on the

grounds taken in the writ petition.

It appears that the Petitioner was engaged as Knitting Instructor on daily wage basis and her services came to be regularized against the post of

Helper vide Order No. 53 - E of 1995 dated 18.03.1995 (Annexure Al to the writ petition). The Petitioner accepted the said order and

discharged her duties as Helper till filing of the writ petition. Respondents 3 & 4, Parveena Malik & Shahida Sofi filed writ petitions before this

Court and obtained interim relief whereby the Respondents were directed to consider their cases for regularization against the posts of Knitting

Instructors. Furthermore, the writ Petitioner herein filed representation for grant of similar relief as was granted in favour of Respondents 3 & 4 but

Respondents have not considered the representation which constrained her to file the writ petition on hand. The Respondents have resisted the writ

petition on the ground that the post of Knitting Instructor is a direct recruitment post and has to be referred to SSRB for selection. It is further

contended that the Petitioner cannot claim equality on the basis of illegalities committed by the Respondents. Article 14 of the Constitution

mandates positive concept and not negative. It is further averred by the Respondents that services of the Petitioner came to be regularized as

Helper in the year 1995 and she accepted her position for a period of four years and thereafter invoked the writ jurisdiction of this Court which she

cannot do now by making a U-turn.

Mr. Qayoom while addressing the arguments confined his relief to the extent of writ of mandamus and prayed that the official Respondents be

directed to consider the case of the Petitioner keeping in view the relief granted in favour of Respondents 3 & 4. In short Mr. Qayoom has claimed

parity and equality as per mandate of Article 14 of the Constitution.

The averments made in the writ petition as also the arguments advanced by Mr. Qayoom are misconceived. In terms of SRO 64 of 1994 the

services of a daily rated worker is to be regularized provided the daily wager is appointed by or before 1st January, 1994 and thereafter after

completion of seven years of service as a daily wager. More so, the service of daily wager has to be regularized against the lower cadre i.e. Class

IV post. Accordingly the services of the Petitioner came to be regularized as Helper in the year 1995 but after noticing the regularization of private

Respondents against the higher posts, she filed the writ petition on hand. In other words she was standing on the fence and watching what will

happen to the fate of the private Respondents. After noticing that they got some interim relief came to the Court after a lapse of four years. On this

count alone, writ petition merits dismissal. My this view is fortified by the judgment of the apex Court delivered in Ghulam Rasool Lone v. State of

J&K reported in 2009 AIR SCW 5260. It is apt to reproduce para 14 of the judgment, which reads:

The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and latches. It is now well

settled that who claims equity must enforce his claim within a reasonable time.

For the said proposition, amongst others, we may notice a decision of a three Judge Bench of this Court in Government of West Bengal Vs. Tarun

K. Roy and Others, , wherein it has been opined:

The Respondents furthermore are not even entitled to any relief on the ground of gross delay 7 and laches on their part in filing the writ petition.

The first two writ petitions were filed in the year 1976 wherein the Respondents herein approached the High Court in 1992. In between 1976 and

1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas

Kumar. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would

operate against the Respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances

before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make

any observation only for the purpose of grant of some relief to the Respondents to which they are not legally entitled to so as to deprive others

therefrom who may be found to be entitled thereto by a Court of law.

(Emphasis supplied)

The question yet again came up for consideration before this Court in New Delhi Municipal Council Vs. Pan Singh and Others, , wherein it has

been observed:

There is another aspect of the matter which cannot be lost sight of. The Respondents herein filed a writ petition after 17 years. They did not

agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They

did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982,

those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time,

therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be

exercised in favour of those who approach the court after a long time. Delay and laches are 8 relevant factors for exercise of equitable jurisdiction.

(Underlining is mine)

[See also Virender Chaudhary Vs. Bharat Petroleum Corporation and Others, .

The said principle was reiterated in S.S. Balu and Another Vs. State of Kerala and Others, in the following terms:

It is also well settled principle of law that ""delay defeats equity"". The Government Order was issued on 15-1-2002. The Appellants did not file

any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala

preferred an appeal there against, they impleaded themselves as party-Respondents. 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. It is, thus, not possible for us to issue any direction to the State of

Kerala or the Commission to appoint the Appellants at this stage.

While going through the rules applicable, one comes to the irresistible conclusion that the post of Knitting Instructor is a direct recruitment post.

If anyone has been appointed or promoted against the said post without adhering to the rules the said appointment/promotion is illegal and such

illegal appointment/promotion cannot give a cause for any person for seeking the same relief. The apex Court in a case supra laid down the same

principle. It is appropriate to reproduce the paragraph 11 of the judgment, which is extracted:

There cannot be any doubt whatsoever that keeping in view the equal protection clause contained in Articles 14 of the Constitution of India as also

Article 16 thereof, all the employees should be treated equally. Equality clause, however, must be enforced in legality and not illegality.

The Division Bench of this Court at Jammu on March 10th 1999, in a case titled State of Jammu and Kashmir v. Mrs. Surekha Pandita and

Ors. while dealing with the similar nature of dispute and controversy also laid down the same principle and also set aside the judgment of the

learned Single Judge whereby Respondents were commanded to consider the case of Miss Parveen Malik for her appointment as Knitting

Instructor on the analogy as was done in the case of private Respondents. In the instant case, the Petitioner has sought the relief on the analogy of

Respondent No. 3 which was granted in favour of Parveen Malik by way of interim relief. As discussed above the said writ petition came to be

dismissed by Division Bench, therefore, the writ Petitioner herein cannot claim the same relief.

Mr. Qayoom while concluding the arguments argued that in SWP No. 1358/1995, the writ petition of Shahida Sofi was allowed and the

Respondents were directed to consider the case of the Petitioner. In the said case also the services of the Petitioner were regularized as Helper

and sought regularization of her services against the post of Knitting Instructor. It appears that the Division Bench judgment (supra) was not

brought to the notice of learned Single Bench. Keeping in view, the judgment passed by the Division Bench of this Court and the judgment of the

apex Court supra, the Petitioner herein cannot claim same relief. At the best the judgment passed in SWP No. 1358/1995 can be said to be

judgment per in curium.

For what is said above, writ petition fails and is dismissed along with CMPs. Interim direction, if any, is vacated.