Delhi High Court
Fateh Singh vs Union Of India & Ors. on 29 August, 2017
11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) 3227/2015
Date of decision: 29th August, 2017
FATEH SINGH ..... Petitioner
Through: Mr.Ankur Chhibber, Mr.R.R.Mishra,
Ms.Shruti Sharma, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms.Barkha Babbar, Ms.Dipanjali
Tyagi, Advs. for UOI
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (Oral)
The petitioner, Fateh Singh, in this writ petition filed in
March, 2015, has primarily prayed for quashing and setting aside of
the order dated 5th November, 2002 by which his service was
terminated on the ground of colour blindness. The petitioner has
also prayed for reinstatement with back wages and that the period
WP(C) 3227/2015 Page 1
from 5th November, 2002 till reinstatement should be counted as
period spent on duty for the purpose of retirement benefits.
2. The first and apparent question which arises for consideration
is whether the writ petition should be dismissed on the ground of
delay and laches. In fact, the principle of res judicata would firmly
apply.
3. Learned counsel for the petitioner submits that delay and
laches would not matter in view of subsequent developments and
orders in different writ petitions. In particular, our attention was
drawn to the order dated 22nd September, 2014 passed by the
respondents on the representation of the petitioner pursuant to the
statement made by the counsel for the petitioner before the
Supreme Court on 14th January, 2013 in Special Leave Petition (C)
no.39971/2012 and the order dated 9th July, 2014 passed in WP (C)
no.2866/2013, which refers to the statement made by the counsel
for the respondents on instructions, that the authorities would pass a
fresh order in light of the orders passed by the Supreme Court and
law laid down by the judgments of this Court including judgment in
WP(C) 3227/2015 Page 2
WP(C) no.5077/2008 Sudesh Kumar vs. Union of India & Anr.
decided on 22nd March, 2011.
4. Having considered the submissions, we are not inclined to
entertain and consider the prayers in the present writ petition on the
ground of delay, laches and res judicata. We will elaborate and
give our reasons.
5. The petitioner had joined as Head Constable (Driver) on 4 th
August, 1998.
6. The petitioner was retired from service on medical grounds
of 'total colour blindness (Protanopia)', on 5th November, 2002.
7. The petitioner had challenged the retirement order dated 5th
November, 2002 in WP(C) no.1557/2003, which was dismissed on
29th May, 2008 recording that in view of exemption notification,
provisions of Disability (Equal Opportunities) Protection of Rights
and Full Participation Act, 1995 were not applicable to combatant
personnel.
8. The petitioner, thereafter, kept quiet for almost five years.
WP(C) 3227/2015 Page 3
9. After about five years, the petitioner filed WP(C) no.
6603/2012 before the Delhi High Court. This writ petition was
dismissed by a speaking order dated 17th October, 2012 on the
ground of delay and laches and also constructive res judicata. This
order dated 17th October, 2012, was passed after the decision dated
22nd March, 2011, in WP(C) No.5077/2008 Sudesh Kumar & Ors.
(supra). In Sudesh Kumar & Ors. (supra) officers in the combatant
Force had challenged their de-boarding on the ground of colour
blindness. In these cases, issue of delay and laches was not an
aspect considered and decided, as the challenge was not belated and
delayed.
10. The petitioner had then preferred Special Leave to Appeal
(C) no.39971/2012, which was dismissed as withdrawn. This order
of dismissal, however, records statement on behalf of the petitioner
that he intended to make a representation to the Central
Government for his rehabilitation in accordance with the decision
in Sudesh Kumar (supra) decided by the Delhi High Court on 22nd
March, 2011.
WP(C) 3227/2015 Page 4
11. We do not read and consider the said order or statement made
by the counsel for the petitioner as giving a fresh or new cause of
action. If that was so, the order of the Supreme Court would have
been differently worded and the special leave petition would not
have been dismissed as withdrawn.
12. The petitioner thereafter made a representation which was
rejected vide order dated 5th April, 2013. This order is a brief one
and merely records that the representation cannot be entertained at
the belated stage.
13. The petitioner had filed a WP(C) 2866/2013 in which as
noticed above, an order of remand was passed on the basis of the
statement made by the learned counsel of the respondents.
14. The aforesaid orders and fact sheet would only reveal that the
petitioner, harping on the statement made by his counsel before the
Supreme Court on 14th January, 2013, had made a representation.
This would not be a concession or an undertaking given by the
respondents.
WP(C) 3227/2015 Page 5
15. Recording the statement, that the petitioner would make a
representation, would not furnish a ground and reason for the
petitioner to file and have a second round of litigation on merits and
unsettle the earlier order dated 17th October, 2012 in WP (C) No.
6603/2012. Prayer for reinstatement and quashing of the order
dated 5th November, 2002 according to us, had attained finality,
when WP (C) No. 6603/2012 was dismissed on the ground of delay
and laches and constructive res judicata. The petitioner cannot
overcome the said dismissal, which has obtained finality without
the order dated 17th October, 2012 being set aside and quashed.
16. The writ petition should not be entertained on the aforesaid
grounds as barred and hit by principles of res judicata, in addition
to delay and laches. The writ petition is accordingly dismissed. No
order as to costs.
SANJIV KHANNA, J
NAVIN CHAWLA, J
AUGUST 29, 2017
RN
WP(C) 3227/2015 Page 6
