Dinesh Kumar vs University Of Delhi & Ors.
2009 Latest Caselaw 1634 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P.(C) NO. 8449/2009

                                            Date of Decision: 24.04.2009
%
Dinesh Kumar                                              .... Petitioner

                          Through Mr. R.K. Saini, Advocate

                                     Versus

University of Delhi & Ors.                                .... Respondents

                          Through Mr. Rajender Dhawan, Advocate

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                              YES
2.    To be referred to the reporter or not?                    NO
3.    Whether the judgment should be reported
      in the Digest?                                             NO


V. K. SHALI, J. (Oral)

*

1. This is a second round of litigation by the petitioner

challenging the order dated 17th October, 2006 passed by the

respondents wherein the petitioner has not found to be suitable

for the post of Caretaker of the respondent/college, and

accordingly, his termination order was passed. It was also

observed in the impugned order that though the aforesaid

termination did not tantamount retrenchment yet without

prejudice to the rights and contentions of the respondents they

were remitting a cheque for a sum of Rs.11,731/- being the

retrenchment compensation.

2. Briefly stated the facts of the case are that the petitioner was

appointed as a Caretaker on 3rd August, 2004 in pursuance to

advertisement dated 26th April, 2004 by the respondent/college in

pursuance to a due selection process. Although the petitioner is

claiming that he had been working with the respondent/college as

Caretaker on an ad hoc basis from 1998, his appointment was

made after granting the petitioner certain relaxation with regard to

acquiring his basic eligibility qualifications. The petitioner has

filed the first round of litigation bearing no. 153/2005 claiming

that his services be regularized although he was placed by the

respondents on probation. This culminated into a judgment

passed by the learned Single Judge on 22nd September, 2006

wherein the learned Single Judge of this Court observed that the

petitioner shall be treated to have continued on probation and the

governing body of the respondent/college was to take a conscious

decision afresh within two months regarding the suitability of the

petitioner to the post he was holding.

3. In pursuance to the aforesaid direction the governing body of

the respondent/college took a decision and passed the impugned

order dated 17th October, 2006 terminating the services of the

petitioner on the ground of suitability as well as non acquisition of

the requisite qualification for which he was granted relaxation.

4. The petitioner feeling aggrieved by the aforesaid order of the

learned Single Judge preferred an LPA bearing No. 2036/2006

against the order of the learned Single Judge which came up for

hearing first time before the Division Bench on 19 th October, 2006

in which notice to show cause as to why the appeal be not

admitted was issued returnable for 17th January, 2007 and in the

meantime the status quo was directed to be maintained with

regard to the services of the petitioner.

5. The petitioner herein knowingly fully well that the impugned

order dated 17th October, 2006 terminating his services had been

passed did not challenge the said order but continued with the

LPA for another period of more than two years ultimately

withdrawing the appeal after addressing the arguments at length

on merits on 19th January, 2009. It is after withdrawal of this LPA

by the petitioner, who was the appellant in the said appeal, he has

woken up to challenge the impugned order dated 17th October,

2006.

6. I have heard the learned counsel for the petitioner as well as

the learned counsel for the respondent, who is present in

response to the advance copy having been served.

7. The contention of the learned counsel for the petitioner is

that he did not choose to assail the order dated 17th October,

2006, earlier as there was an order of status quo and his appeal

was sub judice. Therefore, if the order of the learned Single Judge

itself would have been set aside he would have felt satisfied and

the order dated 17th October, 2006 would have become none est.

The learned counsel has also drawn my attention to the

averments in para 23 of the petition wherein it has been stated

that since the Division Bench was not inclined to interfere with

the order of the learned Single Judge and the Division Bench felt

that it was better and more appropriate for the petitioner to

challenge the order of termination dated 07.10.2006 therefore,

he withdrew the appeal and is assailing the present order within

three or four months from the date of the order, and thus, there is

no inordinate delay or laches in assailing the order dated 17th

October, 2006.

8. Per contra, the learned counsel for the respondent/college

has contended that the facts which have been averred by the

petitioner and the oral observations of the learned Division Bench,

are not reflected in the order dated 9th January, 2009 and

therefore, cannot be taken cognizance of. In addition to this, it

was urged by the learned counsel for the respondents as a matter

of fact the consistent stand of the petitioner has been that he was

appointed on ad hoc basis in the year 1998 and the

respondent/college has wrongly reflected his date of appointment

as 3rd August, 2004.

9. I have carefully considered the respective submissions, there

is no doubt about the fact that there is provision of Limitation Act

and are not applicable to the writ petition. But this has been

consistently observed by the Apex Court that an aggrieved party

must assail the impugned order, there should not be inordinate

delay or laches. The period within which a party must approach

the Court will vary from case to case but certainly a party cannot

be permitted to raise a stale claim. The Hon'ble Supreme Court in

case titled State of M.P. Vs. Bhailal Bhai AIR 1964 SC 1006 had

observed as under:

"the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the Legislature as the time within which the relief by a suit in the Civil Court must be brought may ordinarily be taken to be a reasonable standard by which the delay is seeking remedy under Article 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 the period it will almost always be proper for the Court to hold that it is unreasonable"

10. Coming back to the facts of the case, no doubt, the learned

Single Judge passed an order dated 22nd September, 2006

directing the governing body of the respondent/college to take a

conscious decision to decide the question of suitability and the

continuation of the services of the petitioner which they passed in

the impugned order dated 17th October, 2006 but the petitioner

instead of challenging the said order persisted with his appeal

which was filed after the passing of the said order without seeking

appropriate remedial action either to bring the factum of new

termination order before the Division Bench or to challenge the

said impugned order dated 17th October, 2006. By not having

done so or rather selecting to remain silent on the said matter for

almost 2½ years, it is now too late for the petitioner to challenge

the said order by the way of present writ petition. The contention

of the learned counsel for the petitioner that the learned Division

Bench has observed that it will be appropriate for the petitioner to

challenge the impugned order dated 17th October, 2006 rather

than the persisting with his appeal are not borne from the final

order dated 9th January, 2009.

11. The contention of the learned counsel for the petitioner that

the impugned award makes a wrong statement of terminating the

services of the petitioner, that the non-acquisition of qualification

which he actually done in October, 2004 and submitted the

requisite certificate, is not relevant because the petitioner has to

first cross the initial hurdle of delay and laches. This is a writ

petition which is based on inordinate delay and therefore the

petition is hit by delay and laches.

12. For the foregoing reasons mentioned, I am of the considered

opinion that the writ petition is hit by inordinate delay and laches

and accordingly the same is dismissed.

APRIL 24, 2009                                     V.K. SHALI, J.
KP