Smt. Sajida Rafiq vs State of Rajasthan and Others

P.K. Lohra, J.—The petitioner has laid this writ petition for claiming under mentioned reliefs:-

It is therefore, prayed that by appropriate writ, order or direction; respondent department be directed to pass appropriate order in respect of joining and further department be directed to pass appropriate order in respect of enquiry initiated in pursuance of transfer order dated 31.10.1984.

Cost of this writ petition may kindly be awarded in favour of the petitioner. Any other appropriate direction or order which this Hon''ble Court deems fit in the facts and circumstances of the case may kindly be granted.

To claim the aforementioned reliefs the facts adumbrated in nut-shell are that at the threshold of the service career, the petitioner was appointed as Teacher Grade-III vide order dated 5.11.1977. After completion of the probation period, the petitioner was confirmed on the said post and vide office order dated 12.11.1980, she was allowed Annual Grade Increment. The petitioner has specifically averd in the writ petition that when she was posted at Government Upper Primary School, Kajnaukala, Jodhpur, a fraud was practicised and a spurious application purported to have been moved on her behalf was submitted before the competent authority to transfer her from that school. In fact, as per the petitioner, no such application was submitted by her.

Be that as it may, the said application was considered and the order of transfer was issued on 31.10.1984 containing the recitals about the mutual transfer. When these facts were revealed to the petitioner, the petitioner immediately approached the concerned officer and apprised him about the fact that no such endeavour was made by her, seeking her mutual transfer from Kajnaukala School. Taking cognizance of the petitioner''s grievance, the District Education Officer, Jodhpur vide order dated 15.1.1985 stayed the order of transfer dated 31.10.1984 and permitted the petitioner to re-join at Govt. Upper Primary School, Kajnaukala. In response to the said order, the petitioner submitted her joining at Kajnaukala on 28.1.1985, but the Principal of the institute has not permitted her to join her duties on the pretext that an enquiry relating to her application for voluntary transfer is pending consideration. Subsequent to that, undated representation (Annexure/6) was submitted by her followed by representation dated 07.5.1985 (Annexure/7). The grievance of the petitioner is that she has not been able to join her duties for the reason that inquiry is still pending. Lastly, the petitioner has pleaded that after waiting for almost 27 years, she has served a notice for demand of justice to the department on 25.4.2003 (Annexure/8) for seeking redressal of her grievance.

Learned counsel for the petitioner Mr. Vinay Jain and Mr. Kshamendra Mathur have vehemently argued that after cancellation of order of transfer, the petitioner has submitted her joining before the Principal of institution on 28.1.1985, but she was not permitted to join her duties and till date, she has not received any communication from respondents for joining her duties. Substantiating her contentions, learned counsel would urge that there was a total callousness on the part of the department in completion of the inquiry and, therefore, since 1985 she has not been able to perform her duties.

Per contra, learned Govt. Counsel Mr. Hemant Choudhary has argued that the petitioner has not approached this Court within reasonable time. The cause of action was accrued to the petitioner in the year 1985 and she has invoked jurisdiction of this Court culminating into this litigation after a lapse of three decades, and there is no explanation much less plausible explanation for such an inordinate delay and laches. Therefore, submission of Mr. Choudhary is that the petitioner is liable to be non suited solely on the ground of delay and laches.

Mr. Choudhary, learned counsel also urged that after 3.5.1985, no material has been placed on record on behalf of the petitioner to show that she has made any endeavour to join her duties or to apprise the competent authority about her afflictions. Mr. Choudhary has vehemently argued that from the facts averd in the writ petition, it appears that the petitioner has concealed the material facts from this Court and has concocted false story for redressal of her so called grievance from this Court at the age of 59 years. With these submissions, Mr. Choudhary has submitted that the writ petition is liable to be rejected summarily.

I have given my anxious consideration to the arguments advanced at bar and perused the materials on record.

On perusal of the materials on record, prima-facie this Court is satisfied that the petitioner has not made any endeavour either to join her duties after 1985, or to ventilate her grievance before the competent authority.

It is a trite law that for invoking the extra ordinary jurisdiction of this Court, no period of limitation is prescribed but the Hon''ble Apex Court in case of The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, has held that for invoking writ jurisdiction under Article 226 of the Constitution of India, the limitation prescribed for initiating civil suit can be treated as guiding factor and, therefore, maximum period of limitation can be taken to be three years from the date of accrual of the cause of action.

The Hon''ble Apex Court while considering the delay and laches has made following observations:-

14 The High Court has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, " delay defeats equity" has it fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of a school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above.

Admittedly, in the instant case for alleged grievance the petitioner has approached this Court after three decades and there is no explanation much less plausible explanation for this inordinate delay.

In this view of the matter, the writ petition is liable to be rejected solely on the ground of delay and laches.

From the chain of the events narrated in the writ petition, this Court feels that the petitioner was dormant about her so called right and further more, she has made an attempt to conceal several material facts from this Court. The petitioner has very cleverly designed this writ petition with innocuous prayer seeking direction against the respondents to complete an inquiry and permit her to join her duties.

In my considered opinion, some developments must have taken place after the year 1985 and now in the year 2013, it can very well be presumed that she is no more in the services of the department.

In this view of the matter, I find no merit in this writ petition and the same is accordingly dismissed summarily. No order as to cost.