Bharatbhai Naranbhai Gohil vs The State Of Gujarat
2021 Latest Caselaw 4104 Guj

       C/SCA/10892/2020                                  ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 10892 of 2020

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                   BHARATBHAI NARANBHAI GOHIL
                              Versus
                  THE STATE OF GUJARAT & 1 other(s)
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Appearance:
MR.DEVENDRA H PANDYA(6462) for the Petitioner(s) No. 1
LEARNED AGP MR.KRUTIK PARIKH for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                          Date : 12/03/2021

                            ORAL ORDER

1. By way of the present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following relief:

"8. a) Your Lordships may be pleased to admit and allow this petition.

b) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction against the respondents quashing and setting aside the decision taken by the respondents on the basis of medical certificate dated 14.07.2011 and further be please to direct to authorities to consider the petitioner to be fit candidate and be direct the respondent to issue appointment order forthwith:

c) Pending admission, hearing and final disposal of the present Special Civil

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Application, Your Lordships be pleased to direct the respondent to keep one post of unarmed Police Constable vacant and stay the execution, implementation and pursuant to the advertisement published in the year 2011.:

d) Your Lordships may be pleased to pass such other and further order as the nature, facts and circumstances of the case as may be required in the interest of justice."

2. The main grievance of the petitioner is that the respondent-authority on the basis of certificate issued by Civil Surgeon of Superintendent and Civil Surgeon of Jamunabai Hospital, Vadodara has declared the petitioner unfit for the post in question for which the petitioner was not only selected but possesses the qualification as required. During the Course of submission, the learned advocate has pointed out that in several Co-ordinate Benches decision's, it has been propounded that to declare the candidate as unfit on the ground of colour blindness is not justified and as such, has placed reliance upon few of the decisions, which are attached to the petition compilation and has requested that though there is a lapse of some 11 years in claiming the relief, the parity may be given to consider the case of the petitioner.

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3. As against this, learned AGP Mr.Krutik Parikh appearing on behalf of the authority on advance copy has pointed out to the Court that there is an enormous delay of almost 11 years in claiming the relief and the said delay has not been explained cogently and as such, the petitioner is not to be considered for the relief for which he approached this Court by way of present petition.

4. Learned AGP Mr. Parikh has pointed out the Division Bench Judgment of this Court delivered on 04.02.2020 in Letters Patent Appeal No.131 of 2020 in Special Civil Application No.1813 of 2019 as well as decision dated 06.08.2020 passed in Civil Application No.1643 of 2020 in Letters Patent Appeal No.397 of 2020 with Letters Patent Appeal No.397 of 2020 in Special Civil Application No.12147 of 2019 and has pointed out clearly that the Division Bench, in August, 2020 when confronted with the situation whereby the concerned petitioner has approached the Court after unexplained delay of 9 years, the case had not been considered and extraordinary jurisdiction may not be exercised.

5. Having heard learned advocates appearing for the respective parties and having gone through

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material on the record, it clearly transpires that action of the respondent-authority, which is under challenge is of July, 2011, whereas petition appears to have been presented before this Court in September, 2020. While going through the contents of the petition and while hearing the learned counsel appearing for the petitioner, the Court see no germane reason for accept any explanation for undisputed delay of more than around 11 years and in circumstances, this Court is not inclined to exercise extraordinary equitable jurisdiction.

6. Additionally, reliance which has been placed by the learned counsel appearing on behalf of the petitioner on a decision, which is delivered on 20th July, 2020 in Special Civil Application No.8433 of 2020, however in view of the subsequent division Bench judgment as well as one additional judgment of Division Bench, this Court is unable to exercise any extraordinary jurisdiction, particularly when it has been clearly propounded by Division Bench that unexplained delay cannot be ignored.

7. Accordingly no case is made out to exercise extraordinary jurisdiction since the observation made by the Division Bench of this Court have been taken into consideration by the Court. An

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order dated 06.08.2020, which is later in point of time then the case which has been tried to be relied upon, this Court deems it proper to reproduce said observations hereunder :

"Heard Shri Nikhil Kariel, learned counsel for the appellant.

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."

8. Hence, no case is made out by the petitioner to call for any interference. Petition being devoid of merits and the same stands dismissed accordingly.

(ASHUTOSH J. SHASTRI, J) KUMAR ALOK