Jammu & Kashmir High Court
Vijay Kumar vs State Of J&K on 15 May, 2010
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 2272 OF 2002 Vijay Kumar Petitioners J&K SRTC & ors Respondent !Mr. P. N. Goja, Advocate ^Mr. P. R. Drora, Advocate, vice Mr. R. Koul, Advocate, for respondents 1 to 3. Hon'ble Mr. Justice Mansoor Ahmad Mir, J. Date: 15.05.2010 : J U D G M E N T :
It is averred that the petitioner came to be appointed as a Conductor in the J&K SRTC on 29.9.1979 and thereafter he came to be promoted as Jr. Assistant with effect from 5.11.1985. Mohd. Yaseen-respondent No.4 also came to be appointed as a Conductor on 16.10.1979. Devinder Bhan-respondent No.5, who was junior to petitioner as well as respondent No.4, came to be promoted as Junior Assistant with effect from 28.12.1983. Mohd. Yaseen- respondent No.4 filed SWP No.633/94 in this Court claiming his promotion with effect from the date his juniors came to be promoted, came to be allowed and respondent No.4 was given the effect of promotion as Jr. Assistant with effect from 5.11.1985. Being not satisfied, respondent No.4 filed second writ petition (SWP No.2163/98) claiming that he be given the effect of promotion as Jr. Assistant with effect from the date his juniors came to be promoted, came to be disposed of with a direction to the respondent-Corporation to look into his grievance. The respondent-Corporation passed the rejection order. Mohd. Yaseen-respondent No.4 questioned the same by the medium of SWP No.1819/99, came to be allowed vide judgment and order dated 20.8.2001. It is apt to reproduce the operative part of the judgment herein:
I am of the opinion that the argument put forward by the petitioner that he should be promoted w.e.f 1983 has merely been rejected on the ground that he does not possess typing knowledge. If this was mandatory condition then the question of giving this assignment and his being given this benefit with retrospective effect w.e.f 1985 could not have been arisen. The reply given is not apt. This petition is accordingly allowed. The petitioner is held entitled to promotion w.e.f 1983 i.e, the date on which his juniors/colleagues similarly situated were so given the benefit. Let this benefit be now given within a period of three months from the date, copy of the order passed by this Court is made available by the petitioner to the respondents and counsel for the respondents also. Accordingly Mohd. Yaseen-respondent No.4 was given promotion as Jr. Assistant with effect from 28.12.1983 and subsequently promoted as Sr. Assistant with effect from 16.5.1990. After noticing the said facts, the petitioner herein has approached this Court by the medium of present writ petition for the same relief. It is contended that he came to know about all these facts when the seniority list of the cadre of Sr. Assistants came to be issued. Precisely the case of petitioner is that respondents 4 & 5 were similarly situated and junior to him in the cadre of Conductors, therefore, he is also entitled to be promoted as Jr. Assistant and, thereafter, Sr. Assistant with effect from the dates respondents 4 & 5 came to be promoted as such. It is also prayed that he be placed in the seniority list in the cadre of Sr. Assistants over and above respondents 4 & 5.
Respondents 1 to 3 have filed reply and resisted the petition on the grounds taken in the memo of objections.
It is contended the promotion of respondents No.4 was made by the respondent-Corporation in terms of the judgments passed by this Court in SWP No.663/94 and subsequent writ petitions. The petitioner has filed the present petition after a lapse of about ten years. Therefore, the petition is caught by delay and laches and merits to be dismissed. Further the petitioner is figuring at Sr. No.166 in the seniority list of Jr. Assistants and he cannot be given promotion ignoring 165 Jr. Assistants, who are senior to him. Thus the relief sought cannot be granted without arraying those Junior Assistants who are figuring ahead in the seniority list. It is also averred that the petitioner did not challenge the promotion of respondent No. 5 at Jr. Assistant in the year 1983 and now cannot challenge the promotion of respondent No.5 when he already came to be promoted as Sr. Assistant.
Admittedly, Devinder Bhan-respondent No.5 came to be promoted as Jr. Assistant in the year 1983. Respondent No.4 after noticing that respondent No.5 being junior to him came to be promoted challenged his promotion and filed three writ petitions, the mention of which is made in the judgment passed by this Court in SWP no.1819/99, the operative part whereof, reproduced hereinabove, categorically directed the official respondents to promote him with effect from 28.12.1983. The petitioner did not question the promotion of Devinder Bhan- respondent No.5 within time as Jr. Assistant and Sr. Assistant. The petitioner also has not questioned the promotion of Mohd. Yaseen-respondent No.4 within time though respondent No.4 got his rights determined by the intervention of the Court. When the petitioner has not challenged the promotion of respondents 4 & 5 as Jr. Assistants, now how he can challenge their promotion in the cadre of Sr. Assistant. Virtually the petitioner was waiting and watching at the fence, after noticing that respondent No.4 has made successful inning, the petitioner has come to the Court. The petitioner slept on his rights and as a result of delay, he is no longer entitled to any relief. The petition is caught by delay and laches and writ petition merits to be dismissed on this count alone.
The Apex Court in Ghulam Rasool Lone vs State of J&K, 2009 AIR SCW 5260 laid down the same principle. It is apt to reproduce the relevant portion of paras 14 and 18 herein:
14. The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and laches. It is now well settled that who claims equity must enforce his claim within a reasonable time.. 18. While considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof. Promotion of Hamiddulah Dar was effected in the year 1987. Abdul Rashid Rather filed his writ petition immediately after the promotion was granted.
He, therefore, was not guilty of any delay in ventilating his grievances. It will bear repetition to state that the petitioner waited till Abdul Rashid Rather was in fact promoted. He did not consider it necessary either to join him or to file a separate writ petition immediately thereafter, although even according to him, Abdul Rrashid Rather was junior to him. The Division Bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence. The Apex Court also in Govt. of W. B. vs Tarun K. Roy, (2004) 1 SCC 347; New Delhi Municipal Council vs Pan Singh (2007) 9 SCC 278; Virender Choudhary vs Bharat Petroleum Corpn., (2009) 1 SCC 297 and S. S. Balu vs State of Kerala, (2009) 2 SCC 479, held that the delay defeats equity and that delay and laches are the relevant factors in exercising equitable jurisdiction.
The Apex Court also in Nadia Distt. Primary School Council vs Sristidhar Biswas, AIR 2007 SC 2640, held that petitioners could not be given any benefit when they allowed more than nine years to elapse. It is apt to reproduce the relevant portion of para-4 herein:
4. We have heard learned counsel for the parties. Learned counsel for the appellants submitted that the persons who had not approached the Court in time and waited for the result of the decision of other cases cannot stand to benefit. The Court only gives the benefit to the persons who are vigilant about their rights and not who sit on fence. Mallick's case was decided in 1982, in 1989 Dibakar Pal filed the petition and thereafter in 1989 respondents herein filed the writ petition. Thereafter petition filed by Dibakar Pal challenging the panel of 1980 was hopelessly belated. Likewise the present writ petition filed by the respondents herein. The explanation that the respondents waited for the judgment in Mallick's case or Dibakar's case, is hardly relevant. ... Having glance of the above discussion, this writ petition merits to be dismissed. Accordingly, the same is dismissed along with all CMPs.
Jammu (Mansoor Ahmad Mir) Dated:15.5.2010 Judge (Anil)