Waghela Sahdevsinh Dilubha vs State Of Gujarat
2022 Latest Caselaw 10015 Guj

     C/SCA/2443/2022                                  ORDER DATED: 13/12/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 2443 of 2022
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                       WAGHELA SAHDEVSINH DILUBHA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR MANOJ
SHRIMALI(2331) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 13/12/2022
                               ORAL ORDER

1. The prayer clause 9(A), 9(B), 9(C), and 9(D), which are incorporated as under suggest that the petitioner is challenging the impugned order dated 16.06.2001 passed by the respondent No.4, wherein and whereby the appointment order of the petitioner, to the post of Constable, has been rejected in view of the deficiency in vision and

years.

"9(A) This Hon'ble Court may be pleased to issue writ or order or direction, quashing the impugned order dated 16/6/2001 passed by the respondent no. 4

(B) This Hon'ble Court may be pleased to direct the respondents to give appointment to the petitioner as Unarmed Police Constable with effect from the date of selection list as other similarly situated candidates have been given appointment,

(C) Pending the hearing and final disposal of the petition, be pleased to direct the respondents to initiate proceedings for giving appointment to the petitioner as Unarmed Police Constable with effect

C/SCA/2443/2022 ORDER DATED: 13/12/2022

from the date of selection list as other similarly situated candidates have been given appointment,

(D) To grant any such other and further reliefs as this Hon'ble Court deems just and proper in the facts and circumstances of the case"

2. Learned senior advocate Mr.Shalin Mehta on behalf of the petitioner has placed reliance on the judgement dated 02.11.2018 passed in Letters Patent Appeal No.1136 of 2018 by the Division Bench, whereby delay of nine years has been considered.

3. At the outset, learned AGP has placed reliance on the order dated 27.11.2019 passed in Special Civil Application No.1813 of 2019 in support of his submission that the writ petition is barred by delay. The said order is also confirmed by the Division Bench of this Court vide order dated 04.02.2020 passed in Letters Patent Appeal No.131 of 2020.

4. The issue raised in the writ petition is squarely covered by the decision of the Division Bench of this Court dated 04.02.2020 passed in Letters Patent Appeal No.131 of 2020. The Division bench in an identical set of facts in the case of Lok Rakshak, who challenged his non- appointment to the post of Lor Rakshak due to colour blindness after a delay of 10 years, has held thus:

C/SCA/2443/2022 ORDER DATED: 13/12/2022

"3. We have heard Shri Tushar L. Sheth, learned counsel appearing for Shri Ankit Shah, learned counsel for the appellant. Shri Sheth has submitted that in an identical situation, various courts have directed the authorities to release the appointment by not treating the colour blindness as an ineligibility. Hence, the appellant may not be discriminated against. It has been submitted that appellant being the resident of a rural area, was unaware of judgments by virtue of which several candidates have been considered for appointment, having similar disease. The action of the respondent authority is not on the touchstone of Article 14 of the Constitution of India. Thus, the learned Single Judge has committed a serious error in taking too technical view in the matter and has given undue weightage to the delay aspect. Hence, the order passed by the learned Single Judge deserves to be correct. No other submissions have been made.

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 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. A similar case has been referred to by the learned Single Judge. The observations made by the learned

C/SCA/2443/2022 ORDER DATED: 13/12/2022

Single Judge in dismissing the petition, are deemed proper by us to reproduce hereinafter :

"5.2 The Supreme Court in State of Uttar Pradesh vs. Arvind Kumar Srivastava [(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)

5.3 When the petition is filed after yawning gap of a decade, 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 2007. The conduct is one of acquiescence. It appears that when decision of this Court was rendered, the petitioner wake up.

5.4 It may be stated that in 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

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ground of colour blindness, the said petitioner wanted appointment. Delay in the present case is greater and gross.

6. 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."

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. ORDER 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."

5. Thus, the writ petition is barred by doctrine of delay and latches, since the petitioner is challenging the impugned order after a period of 21 years. Hence, the same is rejected. Notice is discharged.

Sd/-

(A. S. SUPEHIA, J) NVMEWADA