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2010 Supreme(J&K) 135
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Irshada Banoo - Appellant
Versus
State & Ors. - Respondent
SWP No. 1268/1999
Decided On : 03 April, 2010
Advocate For Appellant: M.A. Qayoom
Advocate For Respondent: J.A. Kawoosa
The central legal point established in the judgment is that equality must be enforced in legality and not illegality, and delay and laches are relevant factors for equitable jurisdiction.
Headnote:
Writ Jurisdiction - Regularization of Services - SRO 64 of 1994 - Delay and Laches - Illegal Appointment - Equal Protection Clause - Analogy of Previous Judgments
Fact of the Case:
The petitioner sought to quash an order and obtain mandamus for the regularization of her services as a Knitting Instructor. The respondents resisted, citing the post as a direct recruitment post and illegalities in the petitioner's claim for equality.
Finding of the Court:
The court found the petitioner's claims misconceived, citing SRO 64 of 1994 for regularization, and dismissed the petition due to delay and laches, illegal appointment, and the principle of enforcing equality in legality, not illegality.
Issues: Regularization of services, equality under Article 14, delay and laches, illegal appointment, analogy of previous judgments
Ratio Decidendi: The court relied on SRO 64 of 1994 for regularization, and emphasized the principle that equality must be enforced in legality and not illegality. It also considered delay and laches as relevant factors for equitable jurisdiction.
Final Decision: The writ petition was dismissed, and interim direction, if any, was vacated.
2. It appears that the petitioner was engaged as Knitting Instructor on daily wage basis and her services came to be regularized against the post of Helper vide Order No. 53 -- E of 1995 dated 18.03.1995 (Annexure A1 to the writ petition). The petitioner accepted the said order and discharged her duties as Helper till filing of the writ petition. Respondents 3 & 4, Parveena Malik & Shahida Sofi filed writ petitions before this Court and obtained interim relief whereby the respondents were directed to consider their cases for regularization against the posts of Knitting Instructors. Furthermore, the writ petitioner herein filed representation for grant of similar relief as was granted in favour of respondents 3 & 4 but respondents have not considered the representation which constrained her to file the writ petition on hand. The respondents have resisted the writ petition on the ground that the post of Knitting Instructor is a direct recruitment post and has to be referred to SSRB for selection. It is further contended that the petitioner cannot claim equality on the basis of illegalities committed by the respondents. Article 14 of the Constitution mandates positive concept and not negative. It is further averred by the respondents that services of the petitioner came to be regularized as Helper in the year 1995 and she accepted her position for a period of four years and thereafter invoked the writ jurisdiction of this Court which she cannot do now by making a U-turn.
3. Mr. Qayoom while addressing the arguments confined his relief to the extent of writ of mandamus and prayed that the official respondents be directed to consider the case of the petitioner keeping in view the relief granted in favour of respondents 3 & 4. In short Mr. Qayoom has claimed parity and equality as per mandate of Article 14 of the Constitution.
4. The averments made in the writ petition as also the arguments advanced by Mr. Qayoom are misconceived. In terms of SRO 64 of 1994 the services of a daily rated worker is to be regularized provided the daily wager is appointed by or before 1st January, 1994 and thereafter after completion of seven years of service as a daily wager. More so, the service of daily wager has to be regularized against the lower cadre i.e. Class IV post. Accordingly the services of the petitioner came to be regularized as Helper in the year 1995 but after noticing the regularization of private respondents against the higher posts, she filed the writ petition on hand. In other words she was standing on the fence and watching what will happen to the fate of the private respondents. After noticing that they got some interim relief came to the Court after a lapse of four years. On this count alone, writ petition merits dismissal. My this view is fortified by the judgment of the apex Court delivered in Ghulam Rasool Lone v. State of J&K reported in 2009 AIR SCW 5260. It is apt to reproduce para 14 of the judgment, which reads:
"14. The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and latches. It is now well settled that who claims equity must enforce his claim within a reasonable time.
For the said proposition, amongst others, we may notice a decision of a three Judge Bench of this Court in Govt. of W.B. v. Tarun K. Roy, [(2004) 1 SCC 347], wherein it has been opined :-
"34. The respondents furthermore are not even e
