Gujarat High Court
Desai Jitendra Jivanbhai vs State Of Gujarat on 3 September, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/1023/2021 JUDGMENT DATED: 03/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1023 of 2021
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 1023 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DESAI JITENDRA JIVANBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 03/09/2021
ORAL JUDGMENT
1. In the present writ petition, the petitioner has prayed for quashing and setting aside the action of the respondent authorities of not considering his case for the appointment of the post of Unarmed Police Constable and has challenged the order/ communication dated 11.01.2012 (12.01.2012) after a period of 08 years.
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2. The petitioner was selected as a Lok Rakshak in the year 2012 and thereafter, it appears that after his medical examination, vide fitness certificate dated 12.09.2011, he was declared fit for a table work and vide communication dated 11.01.2012 (12.01.2012), he was informed that he was declared unfit for the appointment on the post of Lok Rakshak. The said communication is challenged after a period of 08 years on the ground that similarly situated employees are appointed on the post of Lok Rakshak.
3. Learned advocate for the petitioner has submitted that the issue is squarely covered by the various decisions of the Division Bench of this Court as well as the Coordinate Benches of this Court, whereby the Lok Rakshaks, who are declared as medically unfit on the ground of color blindness have been directed to be reinstated in service. He has submitted that the case of the petitioner is also squarely covered by such decisions. He has placed reliance on the order dated 18.02.2019 passed in Special Civil Application No.483 of 2019. Thus, he has submitted that appropriate directions may be issued directing the respondent authority to appoint the petitioner on the post of Lok Rakshak.
4. Per contra, learned Assistant Government Pleader Mr.Rohan Shah has submitted that there are various decisions of the Division Bench of this Court as well as the Coordinate Benches of this Court on the same issue and in some of the judgements, the Coordinate Page 2 of 7 Downloaded on : Fri Oct 08 20:32:11 IST 2021 C/SCA/1023/2021 JUDGMENT DATED: 03/09/2021 Benches have taken a view that the petitioners, who have belatedly approached this Court, would not be entitled to the benefits of the judgements rendered by this Court and reliefs have been granted only to those recruitment process, which have taken place after 2016. He has submitted that views of the Coordinate Benches are confirmed by the Division Bench of this Court. In support of his submissions, he has placed reliance on the order dated 27.11.2019 passed in Special Civil Application No.1813 of 2019, which is confirmed by the Division Bench of this Court vide order dated 04.02.2020 passed in Letters Patent Appeal No.131 of 2020. Further reliance is placed on the order dated 06.08.2020 passed in Civil Application No.1643 of 2020 in Letters Patent Appeal No.397 of 2020 in Special Civil Application No.12147 of 2019.
5. I have heard the learned advocates for the respective parties and perused various judgements as pointed out by the learned advocates for the respective parties.
6. In the present case, the petitioner was informed on 11.01.2012 that he is not entitled for the appointment to the post of Lok Rakshak due to his medical unfitness. Though in the writ petition, the petitioner has stated that he is declared medically unfit on the ground of colour blindness, nothing is produced on record with regard to the same. The communication dated 11.01.2012 only refers to the Page 3 of 7 Downloaded on : Fri Oct 08 20:32:11 IST 2021 C/SCA/1023/2021 JUDGMENT DATED: 03/09/2021 denial of appointment to the post of Lok Rakshak because of his medical unfitness. Be that as it may, it is not in dispute that by various judgements, the Court has directed the respondent to appoint the Lok Rakshaks, who have been declared as unfit because of the colour blindness, however, this Court has rejected the writ petitions, which are filed belatedly.
7. The order dated 18.02.2019 passed in Special Civil Application No.483 of 2019 refers to the various judgements, including the judgement rendered by the Division Bench of this Court. I may refer to the judgement rendered in the case of Rajdeepsinh Takhatsinh Zala Vs. State of Gujarat being Letters Patent Appeal No.1136 of 2018 decided on 02.11.2018. A perusal of the aforesaid judgement would reveal that the petitioner/appellant therein had immediately challenged the inaction of his termination on the ground of medical certificate by filing Special Civil Application No.854 of 2013. The judgment rendered by the Division Bench laid foundation of further litigation as all the Lok Rakshak, who were denied the appointment on the ground of colour blindness approached this Court. However, some of the petitioners, who had belatedly approached challenging such inaction, the Coordinate Benches have rejected the same, which was confirmed by the Division Bench of this Court.
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8. The Coordinate Bench of this Court in the order dated 16.10.2019 passed in Special Civil Application No.12147 of 2019 has rejected the writ petition on the ground of delay as the petitioner had approached in the year 2019 challenging the order dated 03.10.2011. While placing reliance on the judgement of the Apex Court in the case of Uttar Pradesh Vs. Arvind, (2015) 1 S.C.C. 237, the Coordinate Bench has observed thus:
"4. It is true that ordinarily when an employee is given relief by the court, similarly situated persons would not be denied the relief on the plain ground that such person had not approached the court. However, this may not be a rule of universal truth more particularly in the cases which are marred by delay, latches and acquiescence and therefore, barred for relief.
4.1 The Supreme Court in State of Uttar Pradesh vs. Arvind Kumar Srivastava [ (2015) 1 SCC 237] sounded a caution in this regard in the following words, "However, this principle is subject to well- recognised 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."
(para 22.2)
5. In the present case, the aforesaid principle applies inasmuch as more than eight years have lapsed. It was after a yawning gap of eight years that the petitioner filed present petition seeking appointment in connection with the recruitment process which was held in the year 2011 and in Page 5 of 7 Downloaded on : Fri Oct 08 20:32:11 IST 2021 C/SCA/1023/2021 JUDGMENT DATED: 03/09/2021 which the petitioner had participated at that time. Not only that the delay and inaction on part of the petitioner is evident, there is also no justification whatsoever except a vague reason stated in ground (h) in the memorandum of the petition that, "impugned order was passed in the year 2011 and petitioner is now challenging the same after delay". It was stated further by the petitioner that after he was disqualified in the process of recruitment in the year 2011 he became hopeless therefore delay may be countenanced. This does not convince to make it plausible and acceptable ground to countenance the gross delay of more than 8 years in approaching the court and seeking relief, which is otherwise stale in itself."
8.1 The aforesaid judgement was subject matter of challenge before the Division Bench of this Court in Letters Patent Appeal No.397 of 2020. By the order dated 06.08.2020 passed in Special Civil Application No.1643 of 2020, the Division Bench of this Court confirmed the order passed by the Single Judge by observing that the judgements rendered in the case of similarly situated candidates cannot be applied to the case of such petitioners, who have approached this Court after delay of more than 8-9 years.
8.2 Similar view was taken by the Coordinate Bench vide order dated 27.11.2019 passed in Special Civil Application No.1813 of 2019 and the same was confirmed by the Division Bench of this Court in Letters Patent Appeal No.131 of 2020 vide order dated 04.02.2020.
9. In the present case, as it is noticed, the petitioner was selected on the post in question in the year 2012, the denial is in the year 2012 and the writ petition has been filed seeking similar relief Page 6 of 7 Downloaded on : Fri Oct 08 20:32:11 IST 2021 C/SCA/1023/2021 JUDGMENT DATED: 03/09/2021 of other similarly situated employees in the year 2021 i.e. after passage of more than 08 years from his selection as well as the impugned communication dated 11.01.2012. Thus, since the petitioner has slept over his rights for all these years, he is not entitled for equitable relief on the ground of delay merely because other similarly situated persons have been granted relief as it appears that all the Lok Rakshak, who have been granted relief by this Court had approached within reasonable time.
10. The present writ petition fails. Rule is discharged.
11. Consequently, the connected civil application for direction does not survive and hence, the same also stands rejected.
Sd/- .
(A. S. SUPEHIA, J)
NVMEWADA
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