Smt. Minakshi Bharti vs The Manager S D Bankey Bihari
2016 Latest Caselaw 7479 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 11939/2016 and C.M. Appl. No. 47076/2016 (for directions)


%                                                       20th December, 2016


SMT. MINAKSHI BHARTI                                         ..... Petitioner

                          Through:       Mr. Kartar Singh, Advocate.

                          versus

THE MANAGER S D BANKEY BIHARI
(AIDED SCHOOL) AND ORS.                      ..... Respondents

Through: Mr. Prabhat Kumar, Advocate for R-

2 and 3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition under Article 226 of the Constitution of

India, the petitioner who is an employee of the respondent no. 1/School

seeks relief with respect to benefit of retrospective employment from

6.2.2010 instead of 25.1.2011 when the petitioner was appointed.

2. Petitioner, as also three other persons, was selected by the

Selection Committee for appointment as teachers in the respondent no.

1/School as per the Resolution dated 18.12.2009. With respect to three other

persons, namely, Smt. Alka Sharma, Smt. Monika Malhotra and Smt.

Sonam Suryan, who were also selected along with the petitioner in terms of

the resolution dated 18.12.2009, these three persons got appointment letters

on 6.2.2010 and they joined, whereas the petitioner subsequently got the

letter of joining only on 25.1.2011. This letter dated 25.1.2011 reads as

under:-

"S.D. BANKEY BIHARI VIDYA MANDIR 3180, Bakey Bihari, Mandir Marg, Pahar Ganj, New Delhi - 110055

Ref: No. SDBBYM392/11 Dated: 25.01.2011

Smt. Minakshi Bharti

Sub:- Appointment of Assistant Teacher

Madam,

With reference to your application dated 28.06.2009 for the post of Assistant Teacher, I am pleased to inform you that you have been selected by the management committee for the post of Assistant Teacher in the scale of Rs.9,300/- 34,800/- plus usual allowances as per M.C.D. rules subject to the following terms and conditions:-

1. Your appointment has been approved with effect from 29.01.2010 by the M.C.D. vide their letter no. D-1086-H/AEO/(G)Edu.(H.Q.). dtd 01.02.2010.

2. Your services are purely temporary and will be extended subject to the approval of M.C.D. from time to time.

3. You will have to abide by the rules and regulations of the MCD and also of the management committee of the school in case of non-compliance your services will be terminated and no claim will be entertained of your service period.

4. Your appointment has been sanctioned by the Education Department vide their letter no. 435/de/g/Edu/HQ/2011/dt.24.01.2011

Yours faithfully

Copy to:- A.E.O (S.N. VOHRA) M.C.D. Kashmiri gate Delhi-110006"

3. Petitioner by this writ petition prays that since the petitioner

was selected in terms of the Resolution dated 18.12.2009 of the respondent

no. 1, petitioner should be treated equally with the three other persons

whose appointments have been given with effect to 6.2.2010. Petitioner,

therefore, effectively challenges the date of appointment given to the

petitioner vide letter dated 25.1.2011.

4. Today, we are in the end of the year 2016. This writ petition

has been filed on 11.11.2016. Effectively, the petitioner is challenging the

letter dated 25.1.2011 by pleading that this date of joining letter of

25.1.2011 should be read as 6.2.2010, being the date of joining letter issued

to the other three persons. If the petitioner was aggrieved with respect to her

date of joining being wrongly given as 25.1.2011 instead of 6.2.2010, the

petitioner had to seek legal remedies within the period of limitation, and

though Limitation Act does not strictly apply to a writ petition, principles of

Limitation Act do apply by applying the principles of delay and laches,

inasmuch as, what otherwise cannot be done by filing of the suit because the

suit will be time barred, the same then cannot be done by filing of the writ

petition under Article 226 of the Constitution of India. The object of Article

226 of the Constitution of India is to enforce the laws and not breach any

other law applicable to this Court. Accordingly, the Supreme Court in the

judgment in the case of State of Orissa and Another Vs. Mamta Mohanty,

(2011) 3 SCC 436, has held that once the writ petition is filed beyond the

period of limitation, such writ petition ought not to be entertained by the

Courts and should be dismissed by applying principles of limitation as

applicable to writ petitions by the doctrine of delay and laches. The

relevant paragraphs 52 to 54 of the judgment in the case of Mamta Mohanty

(supra) read as under:

"52. In the very first appeal, the respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter.

53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.

54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time."

5. In view of the above, the present petition is barred by

limitation. Since this Court is bound by the law as laid down by the

Supreme Court in Mamta Mohanty's case (supra), this writ petition is

dismissed by applying doctrine of delay and laches and the ratio of the

judgment in the case of Mamta Mohanty (supra).

DECEMBER 20, 2016                             VALMIKI J. MEHTA, J
AK