The instant writ petition has been filed issuance of a writ, order or direction in the nature of mandamus directing the opposite parties to grant seniority on the post of lekhpal as well as other consequential benefits to the petitioner with effect from 1.1.1994 i.e. the date on which petitioner has been declared qualified.
Learned counsel for the petitioner submits that initially the petitioner failed in the lekhpal training examination and after that he had applied for scrutiny and after scrutiny he was declared successful in the examination on 1.1.1994 but he was not informed by the department concerned about the declaration of his result of the scrutiny. Vide order dated 15.09.2009 it was informed that he was qualified for the post of lekhpal by the Commissioner and Secretary of the Board of Revenue, which is appended as Annexure-1 to the writ petition and after competition training he joined on the post of lekhpal and was confirmed on the said post vide order dated 22.3.2016 which is appended as Annexure-4 to the writ petition. It is further submitted that since the result was declared in the year 1994 but he was not informed by the concerned to the petitioner and he was not asked to join the said post of lekhpal in spite of the repeated request and approach to the opposite parties. Since he was qualified and completed the said training in the year 1994 but due to the inaction of the opposite parties he could not join the said post in the year 1994 and he was entitled for appointment since 1994 on the said post. Due to the inaction of the opposite parties his entire seniority and other consequential benefits to the petitioner was affected and he has been placed junior than the other persons qualified in the said training, who had joined earlier before the joining of the petitioner in the same selection process. The representation given by the petitioner has also not been adjudicated by the opposite parties yet and no reason for not informing the petitioner about the result in the 1994 has been disclosed by the opposite parties.
Learned Standing Counsel appearing on behalf of the opposite parties vehemently opposed the contentions made by learned counsel for the petitioner and submitted that the petitioner joined services in the year 2009 and confirmed vide order dated 22.3.2016 and he has not chosen to file writ petition earlier. The writ petition is hit by delay and laches, no satisfactory explanation has been given in the writ petition for condoning the delay and laches, therefore, the instant writ petition may be dismissed merely on the ground of delay and laches.
Heard and perused the record.
The learned counsel for opposite party has vehemently argued that since he petitioner has approached this Court after expiry of much time as as such he is not entitled for any relief. Thus, he urged that the petitioner is not entitled for discretionary and equitable relief under Article 226 of the Constitution of India and the petition is liable to be dismissed on the ground of delay and laches alone.
The issue in question is not res-integra rather has received consideration of Hon'ble Apex court on several occasions. In State of Maharashtra v. Digamber [1995 SCC (4) 683], the Hon'ble Apex Court has dealt with the issue at length by taking note of earlier decisions of Hon'ble Apex Court and Court in England and in para 12, 18, 19 and 20 of the decision Hon'ble Apex Court has held as under:
"12...Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain latches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to latches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action, not being available later on. Further, where granting of relief is claimed against the State on alleged, unwarranted executive action, is bound, to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or latches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. 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 latches 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 latches 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.
18. Latches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221), thus:
Now the doctrine of latches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy.
19. Whether the above doctrine of latches which disentitled grant of relief to a party by Equity Court of England, could disentitle the grant of relief to a person by the High Court in exercise of its power under Article 226 of the-Constitution, when came up for consideration before a Constitution Bench of this Court in Moon Mills Ltd. v. M.R. Meher, President Industrial Court, Bombay AIR 1967 SC 1450 it was regarded as a principle that disentitled a party for grant of relief from a High Court in exercise of its discretionary power under Article 226 of the Constitution.
20. A three-Judge Bench of this Court in Maharashtra State Raod Transport Corporation v. Shri Balwant Regular Motor Service, Amravati , reiterated the said principle of latches or undue delay as that which applied in, exercise of power by the High Court under Article 226 of the Constitution."
Thus from the aforesaid settled legal position, it is clear that before granting discretionary relief under Article 226 of the Constitution it is necessary for this Court to examine as to whether the conduct of petitioners on account of latches or undue delay, acquiescence or waiver, disentitles him for such reliefs. For that purpose it is necessary to examine that as to whether it would be practically unjust to give a remedy either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it or whether by his conduct and neglect, he has, though perhaps not waiving that remedy, yet, put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterward to be asserted. While examining the matter it should also be kept in mind that in every case if an argument against relief which otherwise would be just, is founded upon mere delay that delay of course not amounting to a bar by any statute or limitations, waiver and acquiescence the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as it relates to the remedy. Where the relief is claimed against the state on alleged unwarranted executive action is bound to result loss of public exchequer of state or in damage to other public interest, this Court before granting such relief is required to satisfy itself that the delay or latches on the part of citizen or any other person in approaching for relief under Article 226 of the Constitution on alleged violation of his legal right was wholly justified in facts and circumstances of the case. Therefore, before examining the case within aforesaid parameters, it is necessary to consider the true content and meaning of expression, 'waiver' and 'doctrine of acquiescence'.
In the instant case, it is admitted fact that the petitioner has knowledge of the fact that he was not informed of the result of 1994 and he has joined the service in the year 2009 and he was confirmed on the said post in the year 2016. It is undisputed fact that earlier the petitioner has not filed writ petition for issuance of mandamus or direction which he sought in the instant writ petition. The reasons of delay of about 10 years is caused in filing the instant writ petition which is not explained by the petitioner and merely saying that several representations have been submitted to the opposite parties cannot be a ground for condoning the delay in filing of the writ petition. The writ petition is hit by delay and laches as unexplained.
Thus, having regard to the facts and circumstances of the case discussed hereinbefore, I am of the considered opinion that the writ petition is liable to be dismissed on the ground of delay, laches, waive and acquiescence.
Accordingly, the writ petition being devoid of merit is dismissed.
Order Date :- 30.8.2019 Prajapati