Sughar Singh vs State of U.P. and Others

Sudhir Agarwal, J.—Heard Sri Rakesh Bahadur, learned Counsel for the petitioner, learned standing counsel for respondents No. 1 to 3 and Sri Gautam Baghel, advocate for respondent No. 6.

This writ petition is directed against the order dated 11/12.11.2009, passed by the District Inspector of Schools, Etawah (Annexure-1 to the writ petition) whereby, in accordance with Chapter III, Regulation 2 (2) of the Regulations framed under U.P. Intermediate Education Act, 1921 (hereinafter referred to as the "1921 Act") the promotion of respondent No. 6 on class IV post has been approved.

Learned Counsel for the petitioner submitted that the respondent No. 6 was appointed as a class IV employee on 20.1.2000 when one Sri Shiv Shanker Verma was the President of the Committee of Management. The respondent No. 6 was his cousin (mamera bhai) and thus his appointment was invalid from the very inception in view of Regulation 22 read with Regulation 4, Chapter III of the Regulations framed under 1921 Act which prohibits the appointment of a relative of any member of the Committee of Management in the College.

It is not in dispute that since the date of appointment, on class IV post respondent No. 6 is continuously working in the College and at no point of time his appointment was ever disputed by petitioner in any proceedings. It is only for the first time when a representation was filed on 30.10.2009 while the appointment of respondent No. 6 on class IV post made on 20.1.2000 was challenged by the petitioner on the above ground only for the purpose of depriving him promotion under the Regulations.

In fact the order of appointment of respondent No. 6 has not been challenged even in this writ petition and there is no relief seeking writ of certiorari for quashing the appointment letter of respondent No. 6. When certain persons are eligible to be considered for promotion, in order to deny a promotion or right to be considered for promotion, their appointment made long back cannot be disputed particularly when no steps were taken by the person concerned assailing the appointment before the competent authority in accordance with law within a reasonable time. Once the appointment is made and continue for a sufficient time, the appointee is entitled for all consequences flowing by virtue of such appointment as are permissible under the Rules and Regulations, governing conditions of service which includes promotion etc.

Sri Rakesh Bahadur, learned Counsel for the petitioner stated that even today he is not aggrieved by the mere appointment of respondent No. 6 on class IV post but his grievance is that the respondent No. 6 cannot be considered for promotion to a class III post since his appointment in class IV was not valid.

I find no substance in the submission inasmuch as in the absence of any challenge to such appointment the respondent No. 6, for such a long time and even in this case, he would be entitled to all such consequences flowing from his status as a result of his appointment in a class IV post and the same cannot be denied to him for a limited purpose only.

In Vijay Narain Sharma v. District Inspector of Schools, Etawah and Ors. 1986 UPLBEC 44, this Court in paragraphs 25 and 26 of the judgment held as under:

On a reading of Regulation 3 of Chapter II, it is clear that it nowhere contemplated that the teacher who challenges the seniority list can again challenge the validity of the appointment or promotion of a teacher in the college. He cant only be aggrieved by the factors, if wrongly decided, as mentioned in Regulation 3. The dispute can be taken in appeal Under Clause (1) of Regulation 3 quoted above. In my opinion, it is clear that while disputing the validity of the seniority list, it is not open to a teacher to challenge the appointment and promotion which had already been done. The challenge to the appointment and promotion has been specifically provided. If no challenge is made at that stage then the appointment and promotion becomes final. If the Legislature intended that the appointment and promotion can be challenged at the time of determining seniority, the Legislature would have specifically provided in the Regulations. This has not been done.

There is another aspect of the matter that once the appointment or promotion becomes final, a vested right is created in favour of a teacher. A colleague of his in the institution having acquiesced to the appointment and promotion cannot be, subsequently, permitted to raise the dispute.

Similar view was taken in Smt. Manju Keshi Dixit v. State of U.P. and Ors. 2004 (5) ESC 234 : 2004 (4) AWC 3758, and in paragraph 13 this Court held:

Thus, the consistent view of this Court is that the appointment cannot be challenged while determining the seniority and if the appointment has been made and is continued for long period, it should not be disturbed or set aside on some technicalities or procedural irregularities.

Both the above judgments have been followed recently in Smt. Bharti Roy v. Deputy Director of Education, II, Kanpur and Ors. 2008 (2) ESC 911 : 2008 (3) AWC 2310.

Moreover, no reason has been assigned by learned Counsel for the petitioner as to why for the last almost 9 years the appointment of respondent No. 6 on class IV post was not challenged in a proper forum.

Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction Under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and Others, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In Lipton India Ltd. and Others Vs. Union of India (UOI) and Others, and M.R. Gupta Vs. Union of India and others, , it was held that though there was no period of limitation provided for filing a petition Under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In The Oriol Industries Ltd. Vs. The Bombay Mercantile Bank Ltd., it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyarimohan Samantaray and Others, and State of Orissa and Others Vs. Shri Arun Kumar Patnaik and Others, and the said view has also been followed recently in Shiv Dass Vs. Union of India (UOI) and Others, Supreme 455 : 2007 (5) AWC 4467 (SC) and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey v. State of U.P. and Ors. 2008 (4) ESC 2423 . This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation and Others, In S.S. Balu and Another Vs. State of Kerala and Others, the Apex Court held that it is well-settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approach the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus (Baboobhai) A Hamid Padvekar Vs. State of Maharashtra through its Secretary and Others, the Court referred to the observations of Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc. (1874) 5 PC 239, and held as under:

Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of timeand delay are most material � Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

Once it is not in dispute that the respondent No. 6 is senior to the petitioner as a class IV employee and he is otherwise eligible for promotion, I do not find it a fit case warranting interference at this stage in extraordinary equitable jurisdiction Under Article 226 of the Constitution. The writ petition lacks merit, and, is accordingly dismissed in limine.