Jammu & Kashmir High Court - Srinagar Bench
Cm (1419/2022) vs Ut Of J&K And Others on 29 March, 2022
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
NISSAR A BHAT
2022.03.30 03:45
Supplementary List - 1
S. No. 92
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) 573/2022
CM (1419/2022)
Zafar Shaheen Parvaze
... Petitioner/appellant(s)
Through: Mr. Q. R. Shamas, Advocate
V/s
UT of J&K and others
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
ORDER
29-03-2022
1. The genesis of the present petition lies in the selection and appointment of the private respondent no. 9 as Medical Officer (AYUSH) pursuant to advertisement notice dated 13.10.2013. The order of appointment of the private respondent no. 9 followed on 20.1.2014.
2. Earlier the petitioner has filed two more writ petitions bearing nos. SWP 2515/2013 and SWP 2423/2015 challenging the appointment order of the private respondent no. 9.
3. In the present writ petition filed more than eight years after the appointment of the said private respondent, the petitioner has sought to highlight the fact that the said private respondent had in fact failed to pass 10+2 examination whereas the marks card submitted by the said private respondent for the said class reflected that he had secured 305 out of 600 marks. It is thus stated that the admission sought by the said private respondent to WP (C) 573/2022 Page 2 of 4 the BUMS degree course in the Institute of Asian Medical Sciences, Zakura, Srinagar, could not have been obtained on the basis of the fraud played by the said respondent as he had never qualified the 10+2 examination which was an essential qualification for admission to the BUMS degree.
4. The petitioner, it appears, has kept silent from 2014 on this particular issue which has been highlighted in the present petition, and for the first time in 2018 filed an application under Right to Information Act and collected some information from the office of Registrar, Board of Ayurvedic and Unani System of Medicine, J&K, in regard inter alia to the date of birth, internship completion certificate, election card and other documents produced by the private respondent no. 9 for the issuance of registration certificate. From 2018 the petitioner again appears to have kept silent till 2022 when he approached the office of Chief Medical Officer, Ganderbal, for certain information in regard to the year of passing of the Matriculation and the 10+2 examinations by the private respondent no. 9.
5. On a perusal of the documents on record and the averments made in the petition, it thus becomes clear that the petitioner was silent on the issues which he has now highlighted in the present petition, from 2014 till 2022. All these issues relating to the selection and appointment of private respondent no. 9 ought to have been raised and agitated in the two petitions which had WP (C) 573/2022 Page 3 of 4 earlier been filed by the petitioner in 2013 and 2015. The petitioner cannot be permitted to raise new grounds by way of a separate petition at this belated stage more than eight years after the selection and appointment of private respondent.
6. Law with regard to the delay and laches is no longer res integra.
Reference in this regard can be made to a five-Judge Constitution Bench of the Hon'ble Supreme Court in the case of State of Madhya Pradesh and another versus Bhailal Bhai, AIR 1964 SC 1006 where it was held that delay in seeking a remedy under Article 226 more than the prescribed period of limitation would be considered unreasonable.
The Apex Court held:
"Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed b y the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable".
(Emphasis added).
7. The ratio of this judgment has consistently been followed. In State of Maharastra v. Digamber, 1995 (4) SCC 683, it was held:
WP (C) 573/2022 Page 4 of 4
14. . . . Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State."
7. In Tukaram Kana Joshi and ors. v. Maharastra Industrial Development Corporation and ors.,( 2013) 1 SCC 353, the Apex court held that the doctrine of delay and laches was not an absolute bar but a principle to decline exercise of discretionary powers under writ jurisdiction to grant relief.
8. For the reasons mentioned hereinabove, the petition is held to be barred by delay and laches, and is accordingly dismissed.
(DHIRAJ SINGH THAKUR) JUDGE Srinagar 29-03-2022 N Ahmad