Gujarat High Court

Thakor Balaji Jethaji vs State Of Gujarat on 22 June, 2021

Bench: A.Y. Kogje

      C/SCA/6867/2021                                   ORDER DATED: 22/06/2021




                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/SPECIAL CIVIL APPLICATION NO. 6867 of 2021

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                           THAKOR BALAJI JETHAJI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR ADITYA BHATT for MR AMIT P SOLIYA(10780) for the Petitioner
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                  Date : 22/06/2021

                                   ORAL ORDER

1. Heard learned Advocate Mr.Aditya Bhatt for learned

Advocate Mr.Amit Solia for the petitioner and learned Assistant

Government Pleader Mr.Rohan Shah for the respondents.

2. By filing the present petition under Article 226 of the

Constitution, the petitioner seeks to call in question the decision of

the respondent authorities in refusing to give appointment to the

petitioner on the post of Armed Lok Rakshak. The petitioner prays

the Court to direct the respondents to consider the petitioner's

case for appointment.

3. The facts in the backdrop are that advertisement No.01

of 2004 was issued by the respondents for filling up the posts of

PSI and constables. The petitioner participated at that time. The

petitioner successfully passed written examination and oral

interview. The name of the petitioner was also found in provisional

select list of candidates. The petitioner was made to undergo the

C/SCA/6867/2021 ORDER DATED: 22/06/2021

medical tests by letter dated 29.12.2006. The petitioner presented

himself before the Medical Officer. In the medical examination, it

was revealed that the petitioner suffered from colour blindness.

4. In this petition filed in the year 2021, the submission is

raised that in Rajdeepsinh Takhatsinh Zala Vs. State of

Gujarat being Letters Patent Appeal No.1136 of 2018, which is

decided on 02.11.2018, the Division Bench has accepted that the

colour blindness could not be a valid ground to refuse the

appointment for the post of Lok Rakshak. The decision of learned

Single Judge, it was submitted, came to be confirmed by the Letters

Patent Bench.

5. It is true that Rajdeepsinh Takhatsinh Zala (supra) laid

down the proposition of law in the year 2018. However, looking at

the facts of the present case, the recruitment process was

undertaken in the year 2004. It is at that point of time that the

petitioner participated. The Chief District Medical Officer, General

Hospital, Patan, after medically examining the petitioner,

certificated that the colour vision of the petitioner was defective

and the petitioner suffered in his vision accordingly. The petition is

filed in the year 2021 after lapse of fifteen years.

6. It is true that ordinarily when a person is given relief by

the Court, the similarly situated one would not be denied the relief

on the ground that such person had not approached the Court.

C/SCA/6867/2021 ORDER DATED: 22/06/2021

However, this rule is not of universal application, more particularly

in the cases which are barred by gross delay, latches and

acquiescence on part of the litigant. The recruitment process is

long over and rights of the appointed candidates have also

crystallized. Evidently, there has been a lapse of fifteen years

when the petitioner has filed the present petition.

7. The Supreme Court in case of State of Uttar Pradesh

Vs. Arvind Kumar Srivastava, reported in (2015) 1 SCC 237,

sounded a caution in this regard in the following words:-

"However, this principle is subject to well-recognised exceptions in the form of latches 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 latches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim." (para 22.2)

8. When the petition is filed after yawning gap of fifteen

years, the aforesaid principle laid down by the Apex Court would

indeed apply to deny the relief to the petitioner. At the cost of

repetition it may be stated that, the relief to get appointment on

the post of Lok Rakshak is claimed in respect of the process which

C/SCA/6867/2021 ORDER DATED: 22/06/2021

was undertaken in the year 2007. The conduct is one of

acquiescence. It appears that when decision of this Court was

rendered, the petitioner wake up.

9. Useful reference be made to similar case of one

Maheshkumar Jayantilal Patani being Special Civil

Application No.12147 of 2019, the relief was denied, where

recruitment for the post of Lok Rakshak was undertaken in the year

2011 and the petition was filed on the same ground in the year

2019. Yet another Special Civil Application No.14368 of 2019 was

dismissed where the recruitment process was over in the year 2009

and by assailing the ground of colour blindness, the said petitioner

wanted appointment. Delay in the present case is greater and

gross.

10. The Division Bench of this Court in identical fact

situation in case of Karshanbhai Bhurabhai Sardhara Vs. State

of Gujarat in LPA No.131 of 2020, decided on 04.02.2020, has

observed as under:-

"4. Having heard the learned counsel appearing for the appellant and gone through the material on record, it stands undisputed that the learned counsel for the appellant has been unable to point out the reasons that prevented the appellant from approaching the Court or the appropriate authority at the very moment when he was not considered for appointment, which was back in 2009. We have found that the original advertisement

C/SCA/6867/2021 ORDER DATED: 22/06/2021

was published on 23.5.2007 for the post in question and during the process of medical examination, the appellant was found to be unfit, having colour blindness. This was all the way back in February- March, 2009 i.e. almost 10 years prior that, he was not considered for the post in question. Throughout this period, no challenge was made by the appellant nor any plausible explanation has been given as to why he could not approach and raise grievance in a timely manner. The appellant's being a resident of a rural area, is not a ground or an explanation sufficient for such an inordinate delay in agitating. As such, we are in complete agreement with the order passed by the learned Single Judge. The learned Single Judge has relied upon several decisions on account of which the candidates have not been considered on the ground of gross delay......

5. In view of the aforesaid situation prevalent, more particularly since the learned Single Judge has considered the case as per submissions made in almost similar lines, we are also not inclined to observe anything in favour of the present appellant. We see no infirmity in the order passed by the learned Single Judge.

6. Additionally, keeping in view the proposition of law laid down by the Apex Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC 340, more particularly Para.5, in the absence of any better submission or better material, we are not inclined to exercise our appellate jurisdiction or to substitute the view taken by the learned Single Judge.