Delhi High Court
Smt. Thankam Nair vs The Deputy Director Of Education & ... on 19 January, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2368/2014
% 19th January , 2015
SMT. THANKAM NAIR ......Petitioner
Through: Mr. C.N.Sreekumar, Advocate.
VERSUS
THE DEPUTY DIRECTOR OF EDUCATION & ANR. ...... Respondents
Through: Ms. Nikita Khetrapal, Adv. for Ms.
Nidhi Raman, Adv. for R-1.
Mr. Rajiv Talwar, Directorate of
Edu./GNCTD.
Ms. Malini Poduval and Ms. Babita Sant,
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)
1. This writ petition under Article 226 of the Constitution of India is
filed on 2.4.2014. Petitioner, the erstwhile employee of the respondent no.2-Kerala
Education Society Senior Secondary School by this writ petition impugns the
order passed by the respondent no.1-Deputy Director of Education dated 2.1.2001
i.e issued more than 13 years prior to filing of the writ petition. The impugned
order rejects the request of the petitioner seeking voluntary retirement from the
respondent no.2-school.
WPC 2368/2014 Page 1 of 5
2. At the time of issuing of notice in this writ petition, it is specifically
noted by a learned Single Judge of this Court that notice is issued subject to the
petitioner satisfying this Court on the aspect of delay and laches.
3. Petitioner claims that she donated one of her kidneys to her son Mr.
Binoy Nair in 1999 and thereafter sought voluntary retirement. Petitioner was
granted voluntary retirement by the school, but subsequently the Deputy Director
of Education by the impugned order held that petitioner was not entitled to
voluntary retirement.
4. The issue in the present case is not of merits or of entitlement of the
petitioner to claim voluntary retirement, but the issue is whether a writ petition can
be filed in April 2014 with respect to a cause of action which accrued on 2.1.2001,
when the impugned order was passed by the respondent no.1 rejecting the request
of the petitioner for voluntary retirement.
5. Howsoever good a case and cause, and howsoever justified the
entitlement to relief on a cause of action, limitation destroys rights if the same are
not enforced within the period of limitation. If what cannot be done by means of
filing of a suit, the same ordinarily cannot also be done by filing of a writ petition
because even if there is no limitation for filing of a writ petition, courts have
applied the doctrine of delay and laches for rejecting stale claims. It cannot be
WPC 2368/2014 Page 2 of 5
argued that because there is no limitation for filing a petition under Article 226 of
the Constitution of India, a petitioner can approach this Court at any time.
6. In the present case, petitioner has failed to show any reason from
2001 to 2014, and which prevented the petitioner from filing a writ petition in this
Court to impugn the order of the respondent no.1 dated 2.1.2001. Merely sending
of representations in the year 2013, or the alleged ill health of the petitioner which
is not substantiated for this entire period from 2001 to 2014 that she was
completely confined to bed, are no grounds on which this Court should look astray
on the aspect of delay and laches in approaching this Court. Any and every reason
is not a sufficient reason, and unless the statements of facts with respect to the
delay and laches are such that they completely prevented or effectively prevented
the petitioner from approaching the Court, the period of delay and laches cannot
be easily explained away.
7. Clearly therefore the writ petition is barred by delay and laches and
liable to be rejected and is accordingly rejected.
8. The writ petition is also liable to be dismissed because powers which
are exercised under Article 226 of the Constitution of India are discretionary
powers. Discretionary powers cannot be exercised in favour of a person such as
the petitioner who simply stops attending the school after her request for voluntary
retirement is rejected. If recalcitrant and undisciplined employees are permitted,
WPC 2368/2014 Page 3 of 5
schools will not be able to function because such employees at their own
convenience will stop attending the school and after many many years claim rights
against the school. In fact, once the petitioner failed to attend the services of
respondent no.2-school, it is the deemed abandonment of services in view of the
recent judgment of the Supreme Court in the case of Vijay S. Sathaye Vs. Indian
Airlines Limited & Ors. (2013) 10 SCC 253 and petitioner thus now in 2014
cannot rake up issues as if the petitioner remains an employee ie only if the
petitioner had remained an employee, the issue of voluntary retirement would
arise.
9. Counsel for the petitioner did seek to argue that there is no question
of delay and laches because pension is a continuous cause of action, however, I
note that in the present case it is not as if the petitioner is being paid pension and
figure of which is to be varied, and actually the issue is whether petitioner could
get voluntary retirement and which was denied by the alleged illegal order dated
2.1.2001. Therefore, once the issue is the claim of the petitioner to voluntary
retirement by seeking quashing of the order dated 2.1.2001 of the respondent no.1
rejecting such a request, there does arise the issue of delay and laches and there is
no continuous cause of action/recurring cause of action with respect to quashing of
the letter dated 2.1.2001 which rejected the request of the petitioner for voluntary
retirement.
WPC 2368/2014 Page 4 of 5
10. In view of these above reasons, this Court is not persuaded to
exercise its discretionary jurisdiction under Article 226 of the Constitution of India
in favour of the petitioner who simply stopped attending her duties with the
respondent no.2-school from the year 2000.
11. Dismissed.
JANUARY 19, 2015 VALMIKI J. MEHTA, J.
ib
