Delhi High Court
Kailash Chand Jain vs Management Of Cambridge Primary ... on 9 September, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1805/2012 & CM No. 4028/2012 (delay)
% 9th September, 2013
KAILASH CHAND JAIN ......Petitioner
Through: Mr. Vivek Sheel and Mr. S. Rao,
Adv.
VERSUS
MANAGEMENT OF CAMBRIDGE PRIMARY SCHOOL & ANR. ......
Respondents
Through: Mr. Trideep Pais, Adv. for R-1.
Ms. Ferida Satarwala and Mr. Omar
Siddiqui, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM No.4028/2012 (Delay)
For the reasons stated in the application, the application is allowed
and delay is condoned.
CM stands disposed of.
W.P.(C) 1805/2012
1. Petitioner seeks two reliefs. First relief is for enhancement of the
WPC 1805/2012 Page 1 of 5
subsistence allowance from 50% to 75%. The second relief which is
claimed is the challenge to the alleged illegal continuation of suspension
after 90 days from the date of suspension order dated 11.6.2005.
2. It may be noted that this writ petition was filed in March, 2012, and
the impugned order which is challenged has been passed way back on
30.8.2007. Therefore, after roughly about 4 ½ years of passing of the
impugned order, this writ petition is filed. No doubt, the provisions of
Limitation Act, 1963 do not apply to writ petitions, however, really though
the petition may be titled as petition under Articles 226 or 227 of the
Constitution of India, it can in one way be said to be an appeal against the
impugned order dated 30.8.2007. Normally for filing appeals to High
Courts from the date of order of the court below, a period of limitation of 90
days is provided. Even if I do not take the principles of Limitation Act into
application, and which of course, I cannot because petition is under Articles
226 or 227 of the Constitution of India, however, unless and until a person
exercises his remedy with reasonable expedition i.e the petition is not barred
by principles of delay and laches, only then the Courts will entertain such
petition. I do not think that I should entertain a petition for challenging an
order of the Delhi School Tribunal (DST) which has been passed 4 ½ years
prior to filing of the present petition. The petition is therefore liable to be
WPC 1805/2012 Page 2 of 5
dismissed on the grounds of delay and laches.
3. Counsel for the petitioner sought to argue that petitioner is a poor man
and therefore did not have finances to file this petition, more so, because
subsistence allowance was only paid in June, 2012, however, I cannot agree
with the argument for the reason that during this period from 2007 till 2012,
petitioner was involved in three litigations. In two litigations, it is the
petitioner who initiated these litigations. The first litigation is the filing of a
contempt petition/an execution petition for enforcing the impugned order
dated 30.8.2007 i.e the order which is impugned in this petition. These
proceedings were initiated in around the year 2009-2010. The second
litigation is the proceedings before the Labour Court under the Industrial
Disputes Act, 1947 wherein the petitioner had sought a higher pay-scale. In
the third litigation, petitioner was the respondent because respondent no.1-
school had challenged the impugned order of the DST dated 30.8.2007, and
in which challenge the respondent no.1-school was not successful.
Therefore, I cannot agree that petitioner while having capability to contest as
many as three litigations, two of which were initiated by him, but could not
challenge the impugned order for seeking enhancement of the subsistence
allowance from 50% to 75% on the ground of poverty. This argument I
cannot accept and is rejected.
WPC 1805/2012 Page 3 of 5
4. Another reason for me not to entertain this writ petition is the ground
of estoppel and acquiescence. Admittedly, petitioner sought enforcement of
the impugned order of the DST dated 30.8.2007 with respect to payment of
50% of subsistence allowance. At no stage when these proceedings were
pending, and including at the time of initiation thereof, the petitioner
reserved his rights to challenge the order of which he himself was seeking
execution and benefit of. Therefore, having taken benefit of the order,
getting paid the amounts therein, thereafter, the petitioner cannot challenge
the impugned order by seeking to enhance the subsistence allowance from
50% to 75% of his pay. Therefore, I am not inclined to entertain this petition
not only on the ground of delay and laches because challenge is laid to the
impugned order of the August, 2007 after 4 ½ years in March, 2012 but also
on the ground of estoppel and acquiescence.
5. So far as the relief claimed of challenge to the continuation of the
suspension order beyond 90 days after first passing the same on 11.6.2005 is
concerned, once again the right which accrued to the petitioner would be in
the year 2005 itself or at best in early 2006. As already stated, this petition
has been filed in March, 2012. Therefore, the relief claimed with respect to
challenge to the alleged illegal continuation of suspension is after about
almost six years. Therefore, once again, on the ground of delay and laches,
WPC 1805/2012 Page 4 of 5
this petition cannot be entertained.
6. In view of the above, I refuse to exercise my extraordinary jurisdiction
under Article 226 of the Constitution of India, inasmuch as petitioner is
guilty of delay and laches and hit by the principle of estoppel/acquiescence.
The writ petition is therefore dismissed, leaving the parties to bear their own
costs.
SEPTEMBER 09, 2013 VALMIKI J. MEHTA, J.
ib
