Kailash Chand Jain vs Management of Cambridge Primary School and Another

Valmiki J Mehta, J.

CM No. 4028/2012 (Delay)

For the reasons stated in the application, the application is allowed and delay is condoned.

CM stands disposed of.

W.P. (C) 1805/2012

Petitioner seeks two reliefs. First relief is for enhancement of the subsistence allowance from 50% to 75%. The second relief which is claimed is the challenge to the alleged illegal continuation of suspension after 90 days from the date of suspension order dated 11.6.2005. It may be noted that this writ petition was filed in March, 2012, and the impugned order which is challenged has been passed way back on 30.8.2007. Therefore, after roughly about 41/2 years of passing of the impugned order, this writ petition is filed. No doubt, the provisions of Limitation Act, 1963 do not apply to writ petitions, however, really though the petition may be titled as petition under Articles 226 or 227 of the Constitution of India, it can in one way be said to be an appeal against the impugned order dated 30.8.2007. Normally for filing appeals to High Courts from the date of order of the court below, a period of limitation of 90 days is provided. Even if I do not take the principles of Limitation Act into application, and which of course, I cannot because petition is under Articles 226 or 227 of the Constitution of India, however, unless and until a person exercises his remedy with reasonable expedition i.e. the petition is not barred by principles of delay and laches, only then the Courts will entertain such petition. I do not think that I should entertain a petition for challenging an order of the Delhi School Tribunal (DST) which has been passed 4 1/2 years prior to filing of the present petition. The petition is therefore liable to be dismissed on the grounds of delay and laches.

Counsel for the petitioner sought to argue that petitioner is a poor man and therefore did not have finances to file this petition, more so, because subsistence allowance was only paid in June, 2012, however, I cannot agree with the argument for the reason that during this period from 2007 till 2012, petitioner was involved in three litigations. In two litigations, it is the petitioner who initiated these litigations. The first litigation is the filing of a contempt petition/an execution petition for enforcing the impugned order dated 30.8.2007 i.e. the order which is impugned in this petition. These proceedings were initiated in around the year 2009-2010. The second litigation is the proceedings before the Labour Court under the Industrial Disputes Act, 1947 wherein the petitioner had sought a higher pay-scale. In the third litigation, petitioner was the respondent because respondent No. 1-school had challenged the impugned order of the DST dated 30.8.2007, and in which challenge the respondent No. 1-school was not successful. Therefore, I cannot agree that petitioner while having capability to contest as many as three litigations, two of which were initiated by him, but could not challenge the impugned order for seeking enhancement of the subsistence allowance from 50% to 75% on the ground of poverty. This argument I cannot accept and is rejected.

Another reason for me not to entertain this writ petition is the ground of estoppel and acquiescence. Admittedly, petitioner sought enforcement of the impugned order of the DST dated 30.8.2007 with respect to payment of 50% of subsistence allowance. At no stage when these proceedings were pending, and including at the time of initiation thereof, the petitioner reserved his rights to challenge the order of which he himself was seeking execution and benefit of. Therefore, having taken benefit of the order, getting paid the amounts therein, thereafter, the petitioner cannot challenge the impugned order by seeking to enhance the subsistence allowance from 50% to 75% of his pay. Therefore, I am not inclined to entertain this petition not only on the ground of delay and laches because challenge is laid to the impugned order of the August, 2007 after 4 1/2 years in March, 2012 but also on the ground of estoppel and acquiescence.

So far as the relief claimed of challenge to the continuation of the suspension order beyond 90 days after first passing the same on 11.6.2005 is concerned, once again the right which accrued to the petitioner would be in the year 2005 itself or at best in early 2006. As already stated, this petition has been filed in March, 2012. Therefore, the relief claimed with respect to challenge to the alleged illegal continuation of suspension is after about almost six years. Therefore, once again, on the ground of delay and laches, this petition cannot be entertained. In view of the above, I refuse to exercise my extraordinary jurisdiction under Article 226 of the Constitution of India, inasmuch as petitioner is guilty of delay and laches and hit by the principle of estoppel/acquiescence. The writ petition is therefore dismissed, leaving the parties to bear their own costs.