Radhey Sham Garg vs Municipal Corporation Of Delhi, ...
2006 Latest Caselaw 1604 Del

JUDGMENT

J.M. Malik, J.

1. Two important points arise for the consideration of this Court, firstly, whether the relief should be granted to the petitioner after the lapse of 15-16 years and secondly, whether the petitioner has any legal right to be enforced. The facts germane to petitioners case are these. The petitioner completed diploma in engineering and was appointed as Work Assistant or Junior Engineer from on 15.12.1983 onwards in the MCD. The next higher post in the cadre is the post of Assistant Engineer (Civil), which can be filled up 50 per cent each through promotion and by direct recruitment. Two following qualifications are required for eligibility for the post of Assistant Engineer:

(a) the candidate should be holder of degree in engineering

(b) the candidate should have two years work experience

In the year 1989, the respondents invited applications from the eligible candidates for the post of Assistant Engineer against the direct recruitment quota. Although, the petitioner had completed his degree in engineering in the year 1989, yet, he did not have two years work experience. The petitioner is a law abiding citizen and therefore he did not apply for the said post. On the contrary, other similar and identical persons, who were also not eligible to apply for the post of Assistant Engineer (Civil), had applied and their applications were considered by the respondents. The respondents declared the list of successful candidates.

2. As the list also included the names of those persons, who were not eligible, therefore, their selection was called into question in a writ filed before this Court. This Court after going through the matter ordered the appointment of One Man Commission, namely, Hon'ble Justice (Retd.) G.C. Jain. The Commission found that a number of successful candidates were not eligible to apply for the said post. A number of other similar writs were also pending. It is averred that on the basis of compromise, this Court allowed the appointment of such ineligible persons as well as certain similar persons, who had challenged the selection and their names were also included in the list of successful officers.

3. The main grievance of the petitioner is that on the one hand similar and identical persons were considered and appointed as Assistant Engineer (Civil) and on the other hand, the petitioner, who is a law abiding citizen, was not considered for the above said post. It is also explained that had the petitioner been aware of the fate of the above said writ, he would have applied for the said post advertised in the year 1989 and derived the benefit irrespective of the fact that he had completed two years service or not. The petitioner has acquired the right for consideration and appointment under the Constitution of India because the identical and similar persons were considered in the year 1990. Again, those persons, who were rejected in the year 1990, have been appointed as Assistant Engineer (Civil) against the vacancy, which had arisen subsequent to the said selection. Consequently the present writ was filed before this Court on 20.9.2005 with the following prayer:

(a) to issue a writ of the nature of certiorari quashing the appointments which are made in respect of similar and identical persons against the post of Assistant Engineer (Civil); and

(b) to issue a writ of the nature of mandamus directing the respondents to give all the benefits including seniority to the petitioner as the same was given to the other similar and identical persons; and

(c) the Hon'ble Court may pass such further and other order(s) as it may deem fit and proper in the facts and circumstances of the case and in the interest of the case.

4. I have heard the counsel for the parties. Learned Counsel for the petitioner argued that the respondents be directed to consider that the petitioner is eligible for the post of Assistant Engineer (Civil) and their action not to consider him for the post of Assistant Engineer (Civil) against the direct recruitment quota is illegal and unconstitutional. In support of his case, counsel for the petitioner has drawn my attention towards judgment passed by a Single Judge of this Court dated 24.2.2004

5. On the other hand, the learned Counsel for the respondent advanced no arguments.

6. First of all, I am of the considered view that this case is not maintainable on the ground of delay and latches. The application to fill up 60 posts of Assistant Engineer (Civil) was invited in June 1989. Admittedly, the petitioner did not apply for the said post. The selected candidates were appointed in the year 1990. The case of the petitioner is different from the case of Mr.N.C. Sharma and all those petitioners who filed the writs bearing CW Nos.2547/2002, CW 4770/2002 and CW 4769/2002 which were decided vide above said judgment dated 24.02.2004 All those persons/petitioners had applied to the said post. The writ petition filed by Mr. N.C. Sharma was dismissed on account of delay and latches. This fact is apparent from paras 8 and 9 of the judgment dated 24.2.2004, which read:

8. The final directions issued by the Division Bench ensured only for the benefit of 13 persons Sh. M.K. Singla, Sh. R.K. Jain, Sh. B.B. Jaiswal, Sh. A.K. Batra, Sh. Nasrul Islam, Sh. M.M. Khan, Sh. Mandir. Sh. S.K. Mittal, Sh. D.K. Chadha, Sh. Ashwani Kumar, Sh. R.K. Gupta, Sh. M.M. Dahiya and Sh. Ansar Alam. They had approached the court promptly.

9. Petitioners in CW No. 2547/2002 and Sh. N.C. Sharma filed petitions for Special Leave to Appeal before the Supreme Court against the denial of relief to them by the Division Bench of this Court in terms of judgment and order dated 12.5.1998. The said petitions of Special Leave to Appeal filed by the said four persons came to be dismissed by the Supreme Court on various dates. Sh. N.C. Sharma filed a review application before the Supreme Court and the said review application also came to be dismissed.

7. From the above said judgment it also appears that notwithstanding the dismissal of the writ petition filed by Mr.N.C. Sharma, which decision was upheld by the Hon'ble Supreme Court, MCD had subsequently issued the office order dated 12.2.1999 in favor of Mr.N.C. Sharma, who was appointed as Assistant Engineer (Civil) with effect from 12.2.1999. Order dated 24.2.2004 further reads:

Since Sh.N.C. Sharma and the petitioners in CW No.2547/2002 and petitioner No.1 in CW No. 4769/2002 were identically situated, grant of relief by the MCD in favor of Sh.N.C. Sharma wipes out the delay which was held to be fatal against the said petitioners when relief was denied to them at the earlier stage. Said petitioner and Sh.N.C. Sharma were claiming relief at par with other petitioners who had approached this Court in time. Once MCD chooses to waive the delay in favor of Sh. N.C. Sharma, there must be justifiable cause brought on record to deny similar benefit to said petitioners.

8. Under the circumstances, petitioners in the above said writ petition were granted the relief. However, the case of the present petitioner is altogether different. He is coming to the Court after the expiry of 15 years. His case is worse than the case of Mr.N.C. Sharma. It appears that N.C. Sharma filed the writ petition in the year 1998 in CW 3836/1998. The Court refused to grant relief to him, but the department itself granted relief to him. Moreover, all these petitioners had applied but the petitioner did not apply at all and slept over his right for a period of 15 years . His case is not maintainable due to delay and laches.

9. The following authorities go to support this view. In J.N. Maltiar v. State of Bihar , it was held that where the petitioner, a dismissed Government servant, after being informed that his services were terminated for misconduct, spent about three years in sending memorials to the Government, a remedy not provided by law, the High Court was justified in rejecting the petition on the ground of delay.

10. Similarly in C.B.S.E. v. B.R. Uppal and Ors. , it was observed, It may be mentioned that when a final seniority list is published, then certain rights accrue to the persons whose names are contained in that seniority list. If anybody has any grievance against that seniority list, he should challenge it within a reasonable time. In the present case, the writ petition was filed after six years of the publication of the final seniority list. In our opinion, such a stale claim should not have been entertained by this Court at all.

11. In Rajalakshmiah v. State of Mysore AIR 1967 SC 993 : (1967) 2 SCJ 464 (vide para 13) the Supreme Court held that the appellants were guilty of laches because after the impugned order was passed in 1950, they should have filed a writ petition within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they really had a grievance.

12. The Supreme Court in Chandra Singh v. State of Rajasthan and Anr. 2003 V AD (S.C.) 548 : 2003 (6) SCC 20 held as under:

Issuance of a writ of Certiorari is a discretionary remedy (see Champalal Binani v. CIT, West Bengal The High Court and consequently this Court while exercising its extraordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant.

13. This view also finds supports from authorities reported in Raja Pratap Singh v. CBDT , Durga Prasad v. The Chief Controller of Imports and Exports and Ors. , State of Madhya Pradesh v. Nandlal Jaiswal , Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors. , Lindsay Petroleum Co. v. Proposer Armstrong Hurd, Abram Farewall, and John Kemp (1874) 5 PC 221, Babu Singh v. Union of India and Ors. , State of Maharashtra v. Digambar , Municipal Council, Ahmednagar v. Shah Hyder Beig , SA Rasheed v. Director of Mines and Geology .

14. Secondly, the petitioner has failed to prove that he has any legal right to be enforced. It may be recalled that the case of the petitioner has got no parallels with other petitioners who have filed the abovementioned writs. Learned Counsel for the petitioner vehemently argued that his claim is limited only to the effect that his case should be considered by the Department. Although, this Court cannot make such direction, yet, at the same time there lies no rub in moving a representation before his Department that he should be promoted in accordance with law and rules. Hopefully, the same would be decided within the ambit of law.

15. It must be borne in mind that the concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When an authority is shown to have committed any illegality or irregularity in favor of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them [See Ekta Shakti Foundation v. Government of NCT of Delhi 2006 (7) SCALE page 179]. The writ has no force and, therefore, it is dismissed. However, there will be no order as to costs.