Jammu & Kashmir High Court
State Of J&K; And Others. vs Rajesh Anand on 30 December, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPASW No.193/2017
MP No.1/2017
Date of Judgment: 30.12.2017
State of J&K and others. vs Rajesh Anand
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Appellant(s) : Mrs Seema Shekhar, Sr. AAG.
For the Respondent(s) : Mr M.K.Bhardwaj, Sr. Advocate with
Mr Gagan Kohli, Advocate.
i) Whether approved for reporting in Yes/No
Law journals/Digest etc.:
ii) Whether approved for publication
in press/media: Yes/N
Sanjeev Kumar-J
1. The judgment passed delivered by a learned Single Judge of this Court dated 03.05.2017 in SWP No.1032/2011 is subject matter of challenge in this intra Court appeal preferred by the State of Jammu and Kashmir and its functionaries.
2. An advertence, though brief, to the factual antecedents leading to the filing of this appeal would be advantageous to understand the controversy involved in this appeal in proper perspective. The respondent claims to be an outstanding sportsperson having represented not only the State of Jammu and Kashmir but also the Country in Roller Hockey (Skating Hockey). His claim for employment in the services of the State was considered along with similarly situated outstanding sportspersons in terms of the Jammu & Kashmir Government Employees (Appointment of Outstanding Sports Personnel) Rules, 1991 (hereinafter to be referred to as "the Rules of 1991") issued vide SRO 82 dated 07.04.1992. The General Administration Department vide its communication No.GAD(MTG)Sports dated 28.04.1994 recommended to the appellant No.2 to concur with the proposal of appointment of five persons, which included the LPASW No.193/2017 Page 1 of 11 respondent also as Sub Inspectors in the Police Department. Vide Government Order No.1071-GAD of 1994 dated 30.12.1994, sanction was accorded to the appointment of the respondent as Sub-Inspector of Police (Executive) in the Police Department. Consequently, vide order No.42 of 1995 dated 02.02.1995, the respondent was appointed as Sub Inspector of Police (Executive Police) in terms of the Rules of 1991. Along with the respondent four more persons, who were also similarly situated, were also considered by the appellants for appointment under the Rules of 1991 being outstanding sportspersons. The other four persons, who were considered along with the respondent, were Sanjeev Khajuria, Vidya Bhaskar, Bhupinder Singh and Dushyant Sharma. Pursuant to the order of appointment, the respondent joined his services as Sub Inspector in the police department and did not lodge any protest and therefore, as claimed by the appellants acquiesced in his appointment. Out of the five outstanding sportspersons, which included the respondent also, one person namely, Dushyat Sharma, was appointed as Inspector in the Jammu & Kashmir Police. Another person namely, Vidya Bhaskar, was appointed as Inspector in the J&K Excise Department. Rest of the three i.e., the respondent, Sanjeev Khajuria and Bhupinder Singh were, however, appointed as Sub Inspectors in the J&K Police. Sh. Sanjeev Khajuria felt aggrieved of the appointment of Sh. Dushyant Sharma as Inspector in the J&K Police and therefore, filed a writ petition, which was registered as SWP No.166/2000. In the aforesaid writ petition, Sanjeev Khajuria, inter alia, sought a direction to the State-respondents to appoint him also as Inspector in the Police Department on the analogy of Dushyant Sharma and one other person. The writ petition was allowed by a learned Single Bench vide order dated 22.12.2003, which is also reported as 2004(1) JKJ 480[HC]. For facility of reference the operative portion of the aforesaid judgment is reproduced hereunder:-
"10. In view of the detailed discussion, this writ petition is allowed. Respondents/State is directed to appoint the petitioner against the higher post of Inspector in Police Department on the analogy of respondents 5 and 7 or revert LPASW No.193/2017 Page 2 of 11 the said respondents to a lower post of Sub Inspector within a period of three months."
3. The State preferred an appeal against the aforesaid order passed by the learned Writ Court. One appeal was also preferred by the private respondent namely, Dushyant Sharma. Both the appeals were disposed of by the Division Bench of this Court by a common judgment dated 05.03.2009. The appeal preferred by the State i.e., LPASW No.104/2005 was dismissed but the appeal filed by the private respondent namely, Dushyant Sharma i.e., LPASW No.30/2004 was allowed and that part of the judgment of the learned Single Judge whereby the State had been directed to revert respondent Nos. 5 and 7 to the post of Sub-Inspectors was set aside. In a nut-shell, the writ petitioner-Sanjeev Khajuria was ultimately found entitled to be appointed as Inspector on the analogy of Dushyant Sharma. It is submitted that the appellants complied with the judgment of the Division Bench and accordingly, offered Sanjeev Khajuria also the appointment as Inspector in the J&K Police Department in terms of Government Order No.867-GAD of 2009 dated 06.07.2009. It is submitted that the appointment of Sanjeev Khajuria as Inspector was given effect from the date he was initially appointed as Sub Inspector in the J&K Police.
4. The respondent, it may be stated, had accepted his appointment as Sub Inspector in the Police Department, which was offered to him along with two others in the year 1995. It is, however, when the judgment passed by the Division Bench in favour of Sanjeev Khajuria was implemented and he was given appointment as Inspector in the Police Department, it appears to have occurred to the respondent to approach this Court for similar treatment. The respondent, as is apparent from the record, did not come to this Court even immediately after the implementation of the judgment of the Division Bench and appointment of Sanjeev Khajuria as Inspector, but waited for almost two years more and filed the writ petition in the year 2013. In the writ petition the respondent, inter alia, claimed a direction to the appellants-State to treat him to have been appointed as Inspector in the J&K Police w.e.f. 1995 with all consequential benefits of LPASW No.193/2017 Page 3 of 11 seniority and further promotion. The writ petition was resisted by the appellants- State primarily on the ground that it was hit by delay and laches and that the respondent had accepted the appointment as Sub Inspector in the Police Department, which was offered to him in the year 1995 without any protest or demur and therefore, would be deemed to have acquiesced in the appointment. It was contended by the appellants-State that the respondent cannot be allowed to file the writ petition after more than 16 years of the acceptance and joining as Sub Inspector in the Police Department. It was further submitted by the appellants that the respondent was sitting on the fence and watching the proceedings in the writ petition, which had been filed by Sanjeev Khajuria and decided to approach this Court only after Sanjeev Khajuria succeeded in his writ petition and was ultimately offered appointment as Inspector in the Police Department. It was further submitted that even the judgment by the Division Bench in the case of Sanjeev Khajuria was passed on 05.03.2009 but the respondent approached this Court only in the year 2011. The writ petition of the respondent was, however, not seriously contested on merits nor was it specifically denied by the appellants-State that the respondent was not similarly situated with Sanjeev Khajuria.
5. The writ petition was considered by the learned Single Judge of this Court and by the judgment impugned the same was allowed with a direction to the appellants to consider the claim of the respondent in terms of the directions dated 05.03.2009 passed in Sanjeev Khajuria's case (LPASW No.104/2005) and pass consideration order within a period of two months from the date of receipt of copy thereof, provided the Division Bench judgment was applicable. The State is aggrieved of the aforesaid judgment and has challenged the same in this intra court appeal. The only ground that was profusely argued by the learned counsel for the appellants-State is that the learned Single Judge did not consider the plea of delay and laches and estoppel specifically pleaded by the appellants-State in its objections. It was contended by the learned counsel for the appellants that the respondent filed the writ petition after 16 years of acceptance of appointment as LPASW No.193/2017 Page 4 of 11 Sub Inspector. It was urged that the respondent never ever before coming to this Court through the medium of the writ petition, lodged any protest against his appointment as Sub Inspector nor did he ever move any representation in this regard. It was, thus, stated that the respondent acted as a fence sitter and did not himself come to the Court with any grievance. He, however, appears to have been prompted to file the writ petition only when he found that Sanjeev Khajuria, who was a person, similarly situated with him, had ultimately succeeded in his litigation and had got appointment as Inspector in the police department in compliance to the judgment passed by the Division Bench on 05.03.2009. Curiously, submits the learned counsel for the appellants, the respondent did not approach this Court even immediately after the compliance of the judgment of the Division Bench but waited for four years more and filed the writ petition in the year 2011. Learned counsel for the State, therefore, submits that in view of the settled legal position that the person, who slumbers over his rights for a pretty long time cannot be allowed the discretionary relief under extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India, unless he explains such delay. A fence sitter, who watches the proceedings from a distance and comes to the Court only after the persons similarly situated succeed in their endeavor after fighting a long litigation in the Court, is disentitled to claim the equitable relief by invoking the extraordinary writ jurisdiction of this Court.
6. On the other hand, learned counsel for the respondent submits that the respondent is a person similarly situated with Sanjeev Khajuria and Dushyant Sharma and therefore, could not have been discriminated in the matter of appointment under the Rules of 1991, which were then in-vogue providing for appointment in the government service to the outstanding sportspersons. He, however, submits that the appellants-State has treated the respondents with hostile discrimination which is violative of Article 14 and 16 of the Constitution of India and the State, therefore, cannot plead estoppel or acquiescence against the fundamental rights.
LPASW No.193/2017 Page 5 of 117. We have heard the learned counsel for the parties and have perused the record.
8. It is not in dispute that the respondent along with four others were considered for appointment under the Rules of 1991. One out of five persons so considered namely, Dushyant Sharma was appointed as Inspector in the Police Department; whereas the respondent along with Sanjeev Khajuria and Bhupinder Singh were appointed as Sub Inspectors in the police. These appointments were made in the year 1995. The respondent accepted the appointment without any protest or demur and joined his services as Sub Inspector in the Police Department in compliance to the order No.40 of 1995 dated 22.02.1995. Sanjeev Khajuria, who was similarly appointed as Sub Inspector, however, approached this Court through the medium of writ petition filed in the year 2000. The writ petition was disposed of on 22.12.2003. The appeal filed by the State against the aforesaid judgment of the learned Single Judge was disposed of on 05.03.2009. In compliance with the directions issued by the Division Bench, Sanjeev Khajuria was also appointed as Inspector in the Police Department on the analogy of Dushyant Sharma on 06.07.2009. The respondent approached this Court through the medium of SWP No.1032/2011 in the year 2011, which has been disposed of by the learned Single Judge by the judgment impugned. It is also borne out from the record that the respondent never approached the appellants by way of any representation and raised his grievance for the first time after accepting the appointment as Sub Inspector only when he filed the writ petition in the year 2011.
9. In the backdrop of aforesaid admitted position, the submissions made by the learned counsel for the parties may be examined.
10. The stand of the respondent, as is apparent from the writ petition, is that since the petitioner in the earlier writ petition namely, Sanjeev Khajuria and the respondent are similarly circumstanced and stand on the same footing, as such, the benefit that has been given to Sanjeev Khajuria by the Division Bench should also LPASW No.193/2017 Page 6 of 11 be extended to the respondent and that the refusal on the part of the appellants to extend a similar benefit to the respondent is an act of hostile discrimination and is hit by Articles 14 and 16 of the Constitution of India. It is the further submission of the respondent that in the given facts and circumstances it may be true that only Sanjeev Khajuria approached this Court at the earliest point of time but that would not mean that other similarly circumstanced persons should be deprived of the benefit, more so, when there is no disparity between Sanjeev Khajuria and the respondent. The reliance was placed by the learned counsel for the respondent on the judgment of the Supreme Court in the case of State of Karnataka and others v. C. Lalitha; (2006) 2 SCC 747 to support the proposition that justice demands that a person should not be allowed to derive any undue advantage over others employees and the concept of justice is that one should get what is due to him or her in law. It is further submitted that the Supreme Court has time and again observed that the service jurisprudence evolved by the Court of law from time to time postulates that all persons similarly situated should be treated alike and that only because one person has approached the Court would not mean that another person, though, similarly situated should be treated differently.
11. Per contra, the submission of learned counsel for the appellants-State is that admittedly, the conduct of the respondent demonstrates that he was sitting on the fence and watching the proceedings. He approached the Court only after the judgment was passed by the Division Bench in the case of Sanjeev Khajuria and claimed parity in order to get the benefit that had been given to Sanjeev Khajuria as a result of his successful contest in the litigation. Learned counsel for the appellants also pointed out that the respondent even took four years to come to this Court, as the judgment passed in Sanjeev Khajuria's case was implemented as far back as on 06.07.2009; whereas the writ petition was filed by the respondent only in the year 2011. The doctrine of estoppel and acquiescence was also pressed into service by the learned counsel for the appellants-State, who vehemently submitted that the respondent could not be allowed to approach this Court seeking LPASW No.193/2017 Page 7 of 11 equitable relief by invoking the extra-ordinary writ jurisdiction of this Court after a period of 16 years of acceptance of appointment as Sub Inspector.
12. We find sufficient substance in the submission made by learned counsel for the appellants-State that the inordinate delay made by the respondent in approaching this Court has disentitled him to the relief prayed for by him in the writ petition. The position of law in this regard is now well settled. It is now authoritatively held that when a person who is not vigilant of his rights and acquiesces to the situation, his writ petition cannot be entertained after a long delay even on the ground that the same relief was granted to a person similarly circumstanced who was vigilant enough about his rights and had challenged the action without any unnecessary wastage of time. In the case of Shiba Shankar Mohapatra and others v. State of Orissa and others; (2010) 12 SCC 471, the Supreme Court after taking note of the case law on the subject in paragraph No.29 held thus:-
"29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty of delay and the laches. The court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallizes in the interregnum. (vide Aflatoon v. Lt. Governor of Delhi; (1975) 4 SCC 285; State of Mysore v. V.K.Kangan; (1976) 2 SCC 895; Municipal Council, Amhednagar v. Shah Hyder Beig; (2000) 2 SCC 48; Inder Jit Gupta v. Union of India; (2001) 6 SCC 637; Shiv Dass v. Union of India; (2007) 9 SCC 274; A.P. SRTC v. N. Satyanarayana; (2008) 1 SCC 210 and City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala; (2009) 1 SCC 168)."
Though, the aforesaid observations were made by the Supreme Court in the matter of a dispute pertaining to the seniority which had become final, yet, by way of analogy, what was held by the Supreme Court in the aforementioned case is also applicable to the facts of the instant case.
13. In the instant case, if the relief claimed by the respondent is granted at this stage and the respondent is held entitled to be appointed as Inspector with effect from the year 1995 that would amount to unsettling the seniority of many others, LPASW No.193/2017 Page 8 of 11 who might have been appointed as Inspector after the appointment of the respondent as Sub Inspector.
14. Similarly, in the case of Bharat Sanchar Nigam Limited v. Ghanshyam Dass and others; (2011) 4 SCC 38, while explaining the ratio decided in the case of K.I. Shephard and others v. Union of India and others; (1987) 4 SCC 431 in which the Supreme Court had held that the employees who had not come to the Court should not be penalized for not having litigated and would be entitled to the same benefits as the petitioners in that case, in paragraph No.13 it was held thus:-
"13. The principle laid down in K.I.Shephard(supra) that it is not necessary for every person to approach the court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to seek relief would apply only in the following circumstances:
a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees;
b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not;
c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and
d) where the court expressly directs that the relief granted should be extended to those who have not approached the court."
15. Admittedly, Sanjeev Khajuria had not filed the writ petition in a representative capacity on behalf of similarly situated employees nor the relief granted to Sanjeev Khajuria by the Writ Court and upheld by the Division Bench can be said to be a declaratory relief intended to apply to all employees of a particular category irrespective of whether they are parties to the litigation or not. A perusal of the judgments delivered by the learned Single Judge and the Division Bench does not indicate that the relief granted by the Court to Sanjeev Khajuria was intended to be extended to all those who had not even approached the Court. On the touch stone of the principle laid down in the case of Bharat Sanchar Nigam Ltd's case (supra), we have no hesitation to hold that the case of the respondent is not one which falls in any of the categories enumerated in paragraph 13 of LPASW No.193/2017 Page 9 of 11 aforesaid judgment. It may be noted that the judgment in the case of Bharat Sanchar Nigam Limited (supra) is a judgment by a three-Judge Bench whereas the earlier judgment of the Supreme Court in K.I.Shephard's case (supra) was rendered by a two-Judge Bench.
16 The view which a three-Judge Bench has taken in Bharat Sanchar Nigam Ltd's case (supra), has been reiterated in another recent judgment of the Supreme Court in the case of State of U.P. and others v. Arvind Kumar Srivastava ; (2015) 1 SCC 347, which judgment has been vehemently relied upon by the learned counsel for the appellants-State. What was stated by the Supreme Court in paragraph No.22 of the aforesaid judgment is reproduced hereunder:-
"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
22.1. Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-
sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India; (1997) 6 SCC 721. On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the LPASW No.193/2017 Page 10 of 11 judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
17. On the basis of this legal position, we find that the writ petition filed by the respondent was hit by delay and laches as well as acquiescence. As already stated, and is reiterated once again, the judgment passed in Sanjeev Khajuria's case was not a judgment in rem rendered by this Court with an intention to give benefit to all similarly situated persons nor the relief granted to Sanjeev Khajuria could be said to be declaratory, intended to apply to all similarly circumstanced persons, irrespective of whether they were parties to the litigation or not. There is inordinate delay of 18 years in approaching the Court, which has not been explained by the respondent by placing any material on record. The only plea taken by the respondent that he being similarly situated with Sanjev Khajuria cannot be deprived of the benefit which has been granted to him, may be due to the intervention of this Court, cannot be accepted for the reasons given herein above. The contention of the appellants that the respondent was a fence sitter and therefore, is not entitled to any relief whatsoever, deserves to be accepted.
18. For all these reasons and the settled legal position, we find merit in the appeal preferred by the State and the same is, therefore, allowed. As a consequence thereof, the judgment impugned is set aside. There shall be no order as to the costs.
(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Jammu
30.12.2017
Vinod
LPASW No.193/2017 Page 11 of 11