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2010 Supreme(J&K) 578
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mansoor Ahmad Mir, J.
Asha Devi -Appellant
Versus
State & Ors. -Resopndent
SWP No. 1035-2004 & CMP No. 1091-2004
Decided On : 15-11-2010
P.S. Chandel, Neeru Goswami.
Delay and laches can deny discretionary jurisdiction under Article 226 of the Constitution, and delay defeats equity.
Headnote:
Mandamus - Appointment as R.E.T Teacher - Government order no. 1670-Edu of 2003 - Judgment of the Apex Court - Delay and laches - Blanket ban on appointment against the post of General Line Teacher - Division Bench judgment in Riaz Ahmed v. State & Ors, LPA No. 172/2009
Fact of the Case:
The petitioner sought a writ of Mandamus to be appointed as an R.E.T Teacher based on her inclusion in a panel in 2000, but she was not appointed. The respondents resisted the petition citing delay, a ban on filling vacancies through R.E.T Scheme, and the appointment of another candidate in compliance with a court order.
Finding of the Court:
The court found that the petitioner's delay in approaching the court and the imposition of a ban on R.E.T appointments rendered the petition meritless.
Issues: Delay in approaching the court, applicability of the ban on R.E.T appointments, and the impact of the appointment of another candidate on the petitioner's claim.
Ratio Decidendi: The court held that delay and laches can deny discretionary jurisdiction under Article 226 of the Constitution. It also emphasized that delay defeats equity and that delay and laches are relevant factors in exercising equitable jurisdiction.
Final Decision: The writ petition was dismissed due to the petitioner's delay in approaching the court and the imposition of a ban on R.E.T appointments.
It is averred that vide advertisement notice no. DSEJ/1570-82 dated 5th of May’ 2000 issued by respondent no.4 applications were invited from the permanent residents of district Jammu for appointment as R.E.T Teachers at village level in the district. A panel came to be drawn wherein the petitioner was figuring at serial no.1, but despite that she was not appointed. The petitioner made verbal requests but despite of that, her grievance was not redressed. But one Tripta Devi who was figuring at serial no.2 in the said panel came to be appointed in terms of an order passed by this Court in writ petition SWP No. 849/2003 titled Tripta Devi v. State & Ors. Petitioner again made a request for appointment but despite the fact that two posts were lying vacant, the respondent no.4 instead of appointing the petitioner, issued a fresh advertisement notice vide no. DSEJ/PS/870-75 dated 22nd of November’ 2002- (Annexure `C’).
2. The respondents have filed the reply and resisted the petition on the grounds that the selection was made in the year 2000 whereas the petitioner approached the Court in the year 2004, after noticing the judgment dated 25th of November’ 2003 passed in writ petition SWP No. 849/2003 (supra). Petition is belated and no cogent reason is given. In terms of Government order no. 1670-Edu of 2003 dated 24th of November’ 2003, Government has issued clear cut ban on filling up the vacancies of General Line Teachers through R.E.T Scheme and as such at present there is no vacancy of R.E.T Teacher in the said school. Tripta Devi was appointed in pursuance to Court directions and petitioner cannot claim parity because neither she has represented before the respondents nor approached the Court within the reasonable time.
3. Petitioner has filed the rejoinder. Petitioner has not brought on record any fresh material. However, it is averred that immediately after noticing the judgment, she applied for issuance of copy of the approved plan by the Zonal Education Officer, R.S.Pura, District Jammu-respondent no.5.
4. The writ petition merits to be dismissed for the following reasons.
The petitioner has slept over the matter right from the year 2000 till filing of the writ petition i.e., 11th of June’ 2004. She has not explained as to why she failed to approach the Court within the reasonable time. It appears that she has come out of deep slumber when she noticed the judgment in favour of Tripta Devi, who was figuring at serial no.2 in the select panel and got appointed in terms of the judgment passed by this Court on 25th of November’ 2003, meaning thereby she was sitting on the fence and watching the proceedings and after observing that a candidate at serial no.2 has successfully won the battle has invoked the writ jurisdiction of this Court.
5. It is beaten law of the land that a person who is watching at the fence for years to come, cannot seek equitable relief. The petitioner slept on her rights and as a result of delay, she is no longer entitled to any relief. The petition is caught by delay and laches and writ petition merits to be dismissed on this count alone. My this view is fortified by the judgment of the Apex Court in case titled Ghulam Rasool Lone v. State of J&K, 2009 AIR SCW 5260 laid down the same principle. It is apt to reproduce the relevant portion of paras 14 and 18 herein:
"14. The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and laches. It is now well settled that who claims equity must enforce his claim within a reasonable time....."
"18. While considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof. Promotion of Hamiddulah Dar was effected in the year 1987. Abdul Rashid Rather filed his writ petition immediat
