Babu Mangabhai Kathad vs Director General And Inspector ...
2021 Latest Caselaw 10753 Guj

      C/SCA/10838/2021                                         ORDER DATED: 05/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 10838 of 2021

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                    BABU MANGABHAI KATHAD
                             Versus
       DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE,
                        GUJARAT STATE
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Appearance:
MS SHUBHA B TRIPATHI(5597) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR SAHIL B TRIVEDI, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                   Date : 05/08/2021
                                    ORAL ORDER

1. The present petition has been filed seeking the following prayers:-

"7(a). Your Lordship be pleased to admit this petition and allow the same by issuing Notice for final disposal on returnable date;

(b) Your Lordships be pleased to quash and set aside the unfit certificate issued by the Respondent no.3 dated 11.04.2009;

(c) Your Lordships be pleased to issue appointment in armed police constable with all consequential benefits all back wages and be pleased to direct the Respondent no.1to issue appointment order forthwith;

(d) Your Lordships be pleased to issue alternate remedy in the favour of the petitioner."

2. The prayers made in the petition would suggest that the petitioner is seeking for quashing and setting aside the certificate, for which he has been declared unfit in the year 2009.

3. It is the case of the petitioner that he was illegally not issued the appointment order for the reason that he was declared unfit as it was found that he was suffering from colour blindness.

4. Learned advocate for the petitioner has submitted that in an

C/SCA/10838/2021 ORDER DATED: 05/08/2021

identical issue, this Court by the judgment dated 02.11.2018 passed in Letters Patent Appeal No.1136 of 2018 in Special Civil Application No.7595 of 2013 has held that the appointment of Lok Rakshak cannot be denied on the ground that he is declared medically unfit for having colour blindness. He has submitted that thus the present petitioner, who was not appointed due to such reason, action of the respondents may be set aside.

5. Per contra, learned AGP Mr.Sahil Trivedi has submitted that in a similar issue, the Coordinate Bench of this Court, vide order dated 16.10.2019 passed in Special Civil Application No.12147 of 2019 has rejected the petition on the ground of delay, which is confirmed in the Division Bench by the order dated 06.08.2020 passed in Letters Patent Appeal No.397 of 2020.

6. I have heard the learned advocates appearing for the respective parties.

7. In the present case, as noted hereinabove, the petitioner is challenging the inaction of the respondent authorities not appointing him to the post of Lok Rakshak on the ground of the unfitness certificate issued by the respondent no.3 on 11.04.2009. The petitioner has slept over his right and went into slumber, and all of a sudden, after the judgment was delivered by the Division Bench, he has filed the present petition seeking similar relief. The Coordinate Bench of this Court in the identical issue vide order dated 16.10.2019 passed in Special Civil Application No.12147 of 2019 has observed thus:-

"4. It is true that ordinarily when an employee is given relief by the court, similarly situated persons would not be denied the relief on the plain ground that such person had not approached the court. However, this may not be a rule of universal truth more particularly in the cases which are marred by delay, latches and acquiescence and therefore, barred for relief.

4.1 The Supreme Court in State of Uttar Pradesh vs. Arvind Kumar Srivastava [ (2015) 1 SCC 237] sounded a caution in this regard in the

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following words, "However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim." (para 22.2)

5. In the present case, the aforesaid principle applies inasmuch as more than eight years have lapsed. It was after a yawning gap of eight years that the petitioner filed present petition seeking appointment in connection with the recruitment process which was held in the year 2011 and in which the petitioner had participated at that time. Not only that the delay and inaction on part of the petitioner is evident, there is also no justification whatsoever except a vague reason stated in ground

(h) in the memorandum of the petition that, "impugned order was passed in the year 2011 and petitioner is now challenging the same after delay". It was stated further by the petitioner that after he was disqualified in the process of recruitment in the year 2011 he became hopeless therefore delay may be countenanced. This does not convince to make it plausible and acceptable ground to countenance the gross delay of more than 8 years in approaching the court and seeking relief, which is otherwise stale in itself.

5.1 The petitioner by his conduct appears to be a fence-sitter. It may be noted that similarly situated persons who had participated in the Lok Rakshak appointment process in the year 2009 had filed Special Civil Application No. 14368 of 2019 before this court. This petition was also dismissed on the ground of delay. In that case, the petitioner's case for explanation for delay was that he came to know about the rejection of his candidature under the Right to Information Act in the later years. The delay in the present case is, however, more gross and fatal in nature, not to give any relief to the indolent petitioner.

6. It is trite that a litigant has to approach the court to assert his rights to seek relief within reasonable time. Long passage of time sans justification, as it has happened in the present case, which would not only render the claim un-entertainable, but would also disentitle the person from getting any relief."

8. Thus, the Coordinate Bench of this Court has rejected the case of Lok Rakshak seeking appointment, after filing the writ petition in the year 2019. The Coordinate Bench of this Court has specifically observed that it is trite that a litigant has to approach the court to assert his rights to seek relief within reasonable time and long passage of time sans justification will disentitle the petitioner to claim a similar relief.

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9. The aforesaid judgment was subject matter of challenge before the Division Bench and the Division Bench vide order dated 06.08.2020 passed in Civil Application No.1643 of 2020 in Letters Patent Appeal No.397 of 2020 has observed thus:-

"...Admittedly the appellant, who was writ petitioner before the learned Single Judge approached this Court under Article 226 of the Constitution of India after delay of 9 years with no valid explanation resulting into dismissal of the petition. Merely because some other similarly situate candidates had approached this Court and their matter was decided finally in their favour in the year 2018, the petitioner thought it appropriate to take advantage of the said judgment, cannot be a good ground to condone laches of 8-9 years. The Supreme Court is very clear on the proposition that a petition cannot be entertained under extraordinary equitable and discretionary jurisdiction where the litigant has approached the Court after considerable delay. In the present case, the delay is of 8 to 9 years. We accordingly do not find any error in the judgment of the learned Single Judge warranting interference. The appeal lacks merit and is accordingly dismissed."

10. Thus, in view of the observations made by the Coordinate Bench as well as the Division Bench of this Court, the present writ petition seeking appointment to the post of Lok Rakshak and seeking quashing and setting aside the unfitness certificate dated 11.04.2009 cannot be entertained after a delay of almost more than 11 years.

11. Thus, the present writ petition fails and the same is rejected.

(A. S. SUPEHIA, J) ABHISHEK