Vasava Chimanbhai Holiabhai vs State Of Gujarat
2021 Latest Caselaw 7048 Guj

     C/SCA/7543/2021                                ORDER DATED: 28/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7543 of 2021
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                       VASAVA CHIMANBHAI HOLIABHAI
                                  Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
MR NIRAV R MISHRA(6140) for the Petitioner(s) No. 1
MR RK MISHRA(482) for the Petitioner(s) No. 1
MR. ISHAN JOSHI, AGP for the Respondents
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 28/06/2021
                               ORAL ORDER

1. Heard learned Advocate Mr. Nirav Mishra for the petitioner and learned Assistant Government Pleader Mr. Ishan Joshi 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 medical tests. The petitioner presented himself before the Medical Officer. In the medical examination, it was revealed that the petitioner suffered from colour blindness.

C/SCA/7543/2021 ORDER DATED: 28/06/2021

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 Director, M.J. Medical Institute of Ophthalmology, 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. 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

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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 was undertaken in the year 2006. 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,

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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 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. Thus, the appeal lacks merits and the same is accordingly dismissed."

11. Reliance is placed upon a communication on page-78 to indicate that the petitioner has been summoned for the recruitment process to supply the fitness certificate in this regard. The Court is at loss to understand that how the petitioner who was a candidate

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in the recruitment process of the year 2006 has been summoned before the Chairman, Board of Referees in the office of the Director of M & J Institute of Opthalmology. The document on which reliance is placed does not appear to be any communication or any reference to any communication by the recruitment Board or administrative decision of the respondent authorities. Therefore, it is a question as to how and in which manner the petitioner has got himself examined in the year 2021, where admittedly the petitioner was a candidate of the recruitment which took place in the year 2006. Learned advocate is unable to point out any communication from the State Government asking the petitioner to present before the Board of Referees for the purpose of his colour blindness status and issuance of certificate by such Board of Referees.

12. A litigant has to approach the Court within reasonable time to assert his right. Long passage of time would render the claim stale and disentitle the person to get any relief. The length of time, as in the present case, by itself becomes a valid consideration to dismiss the petition.

13. For the above reasons, no relief could be given to the petitioner in the present petition. The petition deserves to be and is hereby dismissed.

(A.Y. KOGJE, J) SIDDHARTH