Sunita Devi and Others vs State of Raj. and Others

Nirmaljit Kaur, J.—The petitioners herein are seeking appointment on the post of Safai Karmchari from the date other similarly situated persons were appointed with all consequential benefits.

It is contended that the petitioners had applied in pursuance to the advertisement dated 12.06.2012 for the post of Safai Karamchari. A list was published on 21.06.2013 by the respondents to cure the deficiencies as stated against their names. Against the names of the petitioners, the deficiency of experience certificate was pointed out. The petitioners were required to complete the said deficiency within seven days. The petitioners accordingly gave the experience certificate within the stipulated period. In spite of the same, their names did not find mention in the eligibility list published on 19/20.07.2013.

The present writ petition has been filed after almost one year and nine months. No explanation for the said delay is forthcoming except that the petitioners had filed various representations and also sent a notice of demand dated 05.10.2014 but the same has not been decided till date. The demand notice too was sent almost after one year and two months. Meanwhile, the list of final appointment was also published on 01.08.2013.

The Apex Court in the case of Naresh Kumar Vs. Department of Atomic Energy and Others, dismissed the appeal on the ground that the same suffers from delay and laches. The Apex Court while upholding the order of the High Court observed that a person cannot claim any relief and seek condonation of delay on the ground that he was making representation after representation which were consistently rejected.

While dealing with the question of delay in filing the writ petition, the Apex Court in the case of Ex. Capt. Harish Uppal Vs. Union of India (UOI) and Others, held:

"8. The petitioner sought to contend that because of laches on his part, no third party rights have intervened and that by granting relief to the petitioner no other person''s rights are going to be affected. He also cited certain decisions to that effect. This plea ignores the fact that the said consideration is only one of the considerations which the court will take into account while determining whether a writ petition suffers from laches. It is not the only consideration. It is a well-settled policy of law that the parties should pursue their rights and remedies promptly and not sleep over their rights. That is the whole policy behind the Limitation Act and other rules of limitation. If they choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India and that is what precisely the Delhi High Court has done. We cannot say that the High Court was not entitled to say so in its discretion. 6. Although in the present case, the delay is only one year and 9 months but the same too is fatal in the facts of this case. The petitioners herein are seeking appointment to the post of Safai Karamchari. They did not find their names in the list of eligible candidates which was published on 19/20.07.2013. The selection was finalized on 01.08.2013. The said selection cannot be re-opened at the behest of a candidate who chooses to sleep over his rights and thereafter challenge the said selection at his own convenient and leisure. No explanation for the delay is forthcoming. In these facts, the delay of even one year and nine months amounts to waiver of the rights.

The Delhi High Court in the case of Shiv Charan Vs. High Court of Delhi and Anr. [Writ Petition (C) No. 5892/2007], decided on 30.5.2008 while determining whether the delay amounts to laches relied on the law summarized in Halsbury''s Laws of England as under:-

"12. The doctrine of latches especially in respect of the service jurisprudence was once again examined in the matter of Chairman, U.P. Jal Nigam and Another Vs. Jaswant Singh and Another, . In the same vein as in the case of NDMC v. Pan Singh and Ors'' case (supra), it was observed that the employees who had not woken up to challenge their retirement and accepting the same had collected their post retirement benefits could not be granted relief in view of a subsequent decision delivered by the Supreme Court. A reference was made to the Halsbury''s Laws of England and it was observed in para 12 and 13 as under:

"12. The statement of law has also been summarized in Halsbury''s Laws of England, para 911, p.395 as follows:

"In determining whether there has been such delay as to amount to latches, the chief points to be considered are:

i) Acquiescence on the claimant''s part; and

ii) Any change of position that has occurred on the defendant''s part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of latches"

In view of the statement of law as summarized above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or wiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in grating the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or a waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"

Applying the said test in the present case, the petitioners have allowed the time to pass and any interference in the selection process at this stage may even amount to dislodging the other candidates. If that is so, then this Court does not deem it proper to come to rescue of the person who by himself is guilty of waiver of his right specially when it means redetermining the selection process in the absence of any explanation for the delay.

Accordingly, the present petition is dismissed on the ground of delay and laches.