Akash Singh Tomar vs Union Of India Thr.
2021 Latest Caselaw 902 MP

       THE HIGH COURT OF MADHYA PRADESH 1
                     WP 5803 of 2021
       Akash Singh Tomar vs. Union of India and Ors.

Gwalior, Dated :19/03/2021

      Shri Sunil Kumar Jain, Counsel for the petitioner.

      Shri Praveen Niwaskar, Assistant Solicitor General for the

respondents/ Union of India.

This petition under Article 226 of the Constitution of India

has been filed seeking the following reliefs:-

''a) That, Order vide Annexure P-1 dt. 24-03- 2020 may kindly be quashed.

b) That, Respondents may kindly be directed to consider appeal for Review Medical on Merit as per rules for consideration of Medical Certificate and issue Letter of Selection and Posting, for the post of Constable (GD) in Central Armed Police Force (CAPE), NIA & SSF and Rifleman (GD) in Assam Rifles (AR) Examination-2018, in favour of Petitioner.

c) Cost of petition may kindly be allowed.''

It is the case of the petitioner that he applied for the post of

Constable (GD) in Central Armed Police Force(CAPE), NIA &

SSF and Rifleman (GD) in Assam Rifles (AR) Examination-2018.

The written examination was conducted on 21/02/2019 and the

petitioner was found qualified for further physical examination

which he passed on 30/08/2019. Subsequently, the result of

Medical Examination was declared on 08/02/2020 and the

petitioner was found unfit due to defect of Hemorrhoids. It is

submitted that Hemorrhoids is not a defect for making the

petitioner unfit and it was a result of earlier dental surgery and was

perfect at the time of examination but no explanation was asked by THE HIGH COURT OF MADHYA PRADESH 2 WP 5803 of 2021 Akash Singh Tomar vs. Union of India and Ors.

the respondents. The petitioner filed an appeal in a prescribed

format along with Medical Certificate of Dr. Sharma, Medical

Officer, District Hospital, Morar, District Gwalior who opined that

the petitioner had no defect. The appeal was dismissed on the

ground that ''due to specialist's certificate not enclosed''. It is

submitted that similarly situated persons had filed writ petitions

which were registered as WP No.8692/2020 [Aditya Kumar Vs.

Union of India and Others) and other connected Writ Petitions

and the same were allowed by order dated 08/10/2020. The writ

appeals have also been dismissed and the petitioner is entitled for

the similar relief.

Per contra, it is submitted by the Assistant Solicitor General

for the Union of India that not only the examinations are over, but

the petition suffers from delay and laches.

Heard the learned Counsel for the parties.

Undisputedly, the claim of the petitioner was dismissed by

order dated 24/03/2020 whereas this petition has been filed on

08/03/2021.

The Supreme Court in the case of UP Jal Nigam and

Another vs. Jaswant Singh and Another, reported in (2006) 11

SCC 464 has held as under:-

''7.Learned Senior Counsel for the appellants has invited our attention to various THE HIGH COURT OF MADHYA PRADESH 3 WP 5803 of 2021 Akash Singh Tomar vs. Union of India and Ors.

decisions to impress upon that persons who are guilty of such laches and acquiesced with the situation should not be granted any relief because it is going to cost the Nigam a heavy financial burden to the tune of Rs.17,80, 43,108/-. Therefore, relief should be confined to those persons who were continuing in service and filed their writ petitions in time but not to all and sundry who woke up to file the writ petitions much after their retirement. In this connection, our attention was invited to a decision of this Court in the case of Rup Diamonds v. Union of India (1989) 2 SCC 356, wherein their Lordships observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, their Lordships held as follows :(SCC pp.356-57) " Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after a year after the first rejection. As observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order THE HIGH COURT OF MADHYA PRADESH 4 WP 5803 of 2021 Akash Singh Tomar vs. Union of India and Ors.

rejecting the writ petition shall not prejudice petitioners' case in any such appeal. "

8. Our attention was also invited to a decision of this Court in the case of State of Karnataka v. S.M.Kotrayya (1996) 6 SCC 267. In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached this Court and this Court after considering the matter observed as under :(SCC p.268) " Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub-section (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub- section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay."

9. Similarly, in the case of Jagdish Lal v. State of Haryana (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows :(SCC p.542) " The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The THE HIGH COURT OF MADHYA PRADESH 5 WP 5803 of 2021 Akash Singh Tomar vs. Union of India and Ors.

appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."

10. In the case of Union of India v. C.K. Dharagupta (1997) 3 SCC 395, it was observed as follows : (SCC p. 398, para 9) " 9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P.Joshi v. Union of India OA No. 497 of 1986, decided on 17-3-1987 gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K.Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."

11. In the case of Government of W.B. v. Tarun K. Roy (2004) 1 SCC 347, their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows :

(SCC pp.359-60, para 34) "34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar 19991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are THE HIGH COURT OF MADHYA PRADESH 6 WP 5803 of 2021 Akash Singh Tomar vs. Union of India and Ors.

ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others there from who may be found to be entitled thereto by a court of law."

12. The statement of law has also been summarized in Halsbury's Laws of England, Para 911 , pg. 395 as follows :

" In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii) any change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches. "

13. In view of the statement of law as summarized above, the respondents are guilty since the respondents has acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in THE HIGH COURT OF MADHYA PRADESH 7 WP 5803 of 2021 Akash Singh Tomar vs. Union of India and Ors.

such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence.''

The petitioner has not explained as to why he did not

approach the Court well in time when the Examinations were

going on. Merely because, the petitioner was waiting for the

outcome of the writ petitions filed by the similarly situated

persons, cannot be a good ground for condoning the delay.

Delay frustrates equity and by entertaining the belated writ

petition, the respondents cannot be compelled to hold the Review

Medical Examination at belated stage. The recruitment process has

already come to an end. Compelling the respondents to hold the

Review Medical Examination would necessarily result in delay in

declaration of names of the selected candidates and would

necessarily result in frustrating the legitimate claims of those THE HIGH COURT OF MADHYA PRADESH 8 WP 5803 of 2021 Akash Singh Tomar vs. Union of India and Ors.

persons who are waiting for their appointment. Under these

circumstances, this Court is of the considered opinion that no case

is made out warranting interference.

The petition fails and is hereby dismissed on the ground of

delay.

(G.S. Ahluwalia) Judge

MKB

MAHENDRA KUMAR BARIK 2021.03.22 16:22:25 +05'30'