Court No. 18
Civil Misc. Writ Petition No. 277 of 2010
Sahroj Khan
Vs.
State of U.P. & others
Hon'ble Sudhir Agarwal, J.
1. Heard Sri A.N. Rai for the petitioner and perused the record.
2. The petitioner’s father working in F.R. Islamiya Inter College
died on 19.5.2005. The petitioner requested the District
Inspector of Schools, Bareilly (hereinafter referred to as “DIOS)
seeking appointment on compassionate basis whereupon he
(DIOS) sent a letter dated 8.9.2006 to respondents no. 3 and 4 to
make appointment of the petitioner on a clerical post. Thereafter
another letter was issued to the Management of Methodist Girls
Inter College on 10.11.2006 but it appears that the Management
of the said institution did not take any further action. The
petitioner knowing it well that DIOS has already issued
appropriate direction to the authority concerned but they have
not taken any further action in the matter wrote a letter dated
4.1.2007 to the DIOS that he has been called several times but
has not been allowed to join and, therefore, action be taken.
Thereafter, there is nothing on record to show that the petitioner
persuaded his right any further for more than two and half years.
3. The case of the respondents is that letter of appointment was
issued to the petitioner on 9.1.2007 but he did not join on the
post whereafter reminders were also issued on 25.3.2007 and
1.5.2007. The information was also published in daily news
paper “Vishva Manav” dated 2.9.2007 and, thereafter, his letter
of appointment was proposed to be cancelled by the institution
concerned. Consequently order was passed by the DIOS on
3.11.2007. Counsel for petitioner submits that the letter dated
3.11.2007 was not received by him at any earlier point of time
except when he applied in August 2009 under Right to
Information Act and, thereafter only the above letter of DIOS
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3.11.2007 was received by him.
4. However, it is not in dispute that after 4.1.2007 the petitioner
neither approached the authorities concerned nor sought any
relief from the appropriate forum for enforcement of his right to
seek appointment on compassionate basis.
5. Learned Standing Counsel however submits that petitioner’s
father being employee of a minority institution, the provisions
pertaining to compassionate appointment are not applicable and,
therefore, the petitioner had no legal right to claim
compassionate appointment. However, I do not intend to enter
into this question since in my view the petitioner is guilty of
extraordinary delay and laches having not taken any step for
enforcement of his right, if any, for compassionate appointment
after sending his letter dated 4.1.2007 knowing it well that the
DIOS has already issued two letters on 8.9.2006 and 10.11.2006
for compassionate appointment of the petitioner as Class III
employee.
6. Delay and laches constitute substantial reason for disentitling
relief in equitable jurisdiction under Article 226 of the
Constitution of India. In New Delhi Municipal Council Vs.
Pan Singh and others J.T.2007(4) SC 253, the Apex Court
observed that after a long time the writ petition should not have
been entertained even if the petitioners are similarly situated and
discretionary jurisdiction may not be exercised in favour of
those who approached the Court after a long time. It was held
that delay and laches are relevant factors for exercise of
equitable jurisdiction. In M/S Lipton India Ltd. And others vs.
Union of India and others, J.T. 1994(6) SC 71 and M.R.
Gupta Vs. Union of India and others 1995(5) SCC 628 it was
held that though there was no period of limitation provided for
filing a petition under Article 226 of Constitution of India,
ordinarily a writ petition should be filed within reasonable time.
In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961
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SC 993, it was said that representation would not be adequate
explanation to take care of delay. Same view was reiterated in
State of Orissa Vs. Pyari Mohan Samantaray and others
AIR 1976 SC 2617 and State of Orissa and others Vs. Arun
Kumar Patnaik and others 1976(3) SCC 579 and the said
view has also been followed recently in Shiv Dass Vs. Union of
India and others AIR 2007 SC 1330= 2007(1) Supreme 455
and New Delhi Municipal Council (supra). The aforesaid
authorities of the Apex Court has also been followed by this
Court in Chunvad Pandey Vs. State of U.P. and others,
2008(4) ESC 2423. This has been followed in Virender
Chaudhary Vs. Bharat Petroleum Corporation & Ors.,
2009(1) SCC 297. In S.S. Balu and another Vs. State of
Kerala and others, 2009(2) SCC 479 the Apex Court held that
it is well settled principle of law that delay defeats equity. It is
now a trite law where the writ petitioner approaches the High
Court after a long delay, reliefs prayed for may be denied to him
on account of delay and laches irrespective of the fact that he is
similarly situated to other candidates who have got the benefit.
In Yunus Vs. State of Maharashtra and others, 2009(3) SCC
281 the Court referred to the observations of Sir Barnes Peacock
in Lindsay Petroleum Company Vs. Prosper Armstrong
Hurde etc. (1874) 5 PC 239 and held as under:
“Now the doctrine of laches in Courts of Equity is not an
arbitrary or technical doctrine. Where it would be practically
unjust to give a remedy either because the party has, by his
conduct done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and
neglect he has though perhaps not waiving that remedy, yet
put the other party in a situation in which it would not be
reasonable to place him if the remedy were afterwards to be
asserted, in either of these cases, lapse of time and delay are
most material. . . . . . . Two circumstances always important
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in such cases are, the length of the delay and the nature of the
acts done during the interval which might affect either party
and cause a balance of justice or injustice in taking the one
course or the other, so far as relates to the remedy.”
7. In view of above, I do not find it a fit case for interference.
Dismissed.
Dt. 7.1.2010
PS