WRIT PETITION 731/1990 on 9 February 1980

JUDGMENT

01. This is a reference made in terms of Rule 36(2) of the Jammu and Kashmir High Court Rules, 1999 necessitated on account of the dissenting judgments recorded by the Division Bench, resulting in the formulation of the following three points:

(i) Were the petitioners pursuant to Advertisement Notice No. 2 dated 09.02.1980 selected for the post of Sub Inspector but were wrongly given appointment in lower rank of Assistant Sub Inspector? dated 09.02.1980 selected for the post of Sub Inspector but were wrongly given appointment in lower rank of Assistant Sub Inspector?

(ii) Had the petitioners made several representations to the department for redressal of their grievance which were not decided, as claimed by them? department for redressal of their grievance which were not decided, as claimed by them?

(iii) Does the writ petition filed by the petitioners suffer from delay and laches?

FIRST ROUND OF LITIGATION

03. The petitioners filed a writ petition bearing OWP No. 731/1990 wherein it was asserted that an advertisement Notice No. 2/Estt-C.60/80/1/21099-070 dated 9.8.1980 was issued by the Inspector General of Police, inter alia, for the post of Sub-Inspector. The petitioners being eligible applied for the post of Sub Inspector but instead of appointing them against the said post, the petitioners came to be appointed as Assistant Sub-Inspectors on 17.8.1982. C.60/80/1/21099-070 dated 9.8.1980 was issued by the Inspector General of Police, inter alia, for the post of Sub-Inspector. The petitioners being eligible applied for the post of Sub Inspector but instead of appointing them against the said post, the petitioners came to be appointed as Assistant Sub-Inspectors on 17.8.1982.

04. It was stated that the petitioners being dissatisfied with their appointment filed representations with the respondents for the redressal of their grievances, which did not elicit any response. It was, in those circumstances, that the writ petition came to be filed on 29.11.1990. appointment filed representations with the respondents for the redressal of their grievances, which did not elicit any response. It was, in those circumstances, that the writ petition came to be filed on 29.11.1990.

05. In the response filed by the official respondents, one of the objections taken was with regard to the delay and laches. It was asserted that even when the petitioners were appointed as Assistant Sub- Inspectors in the year 1982, they filed the petition as late as in the year 1990 and, therefore, sought dismissal of the writ petition on that ground alone. taken was with regard to the delay and laches. It was asserted that even when the petitioners were appointed as Assistant Sub- Inspectors in the year 1982, they filed the petition as late as in the year 1990 and, therefore, sought dismissal of the writ petition on that ground alone.

06. It was stated that advertisement notification No. 2 dated 9.8.1980 was issued, inviting applications, inter alia, for the posts of Sub-Inspector of police from eligible candidates and thereafter another notification bearing notification No. 3 dated 9.9.1980 was stated to have been issued, inviting applications from the eligible candidates, inter alia, for the posts of Assistant Sub-Inspector of police. issued, inviting applications, inter alia, for the posts of Sub-Inspector of police from eligible candidates and thereafter another notification bearing notification No. 3 dated 9.9.1980 was stated to have been issued, inviting applications from the eligible candidates, inter alia, for the posts of Assistant Sub-Inspector of police.

07. It was further stated that a combined written test was conducted for the two posts i.e., for the post of Sub Inspector and Assistant Sub Inspector whereafter the candidates were interviewed and since the petitioners had two posts i.e., for the post of Sub Inspector and Assistant Sub Inspector whereafter the candidates were interviewed and since the petitioners had failed to obtain the merit that would entitle them to be appointed as Sub Inspectors, they were appointed as Assistant Sub-Inspectors. It was stated that since the petitioners had, on their own, agreed to be appointed as Assistant Sub Inspectors, the question of making the representations would not arise especially at a belated stage.

08.

The petition came to be heard by a Single Judge of this court and was decided in favour of the petitioners vide judgment and order dated 20.11.1998. By virtue of the said judgment, the petitioners were directed to be treated as having been appointed as Sub Inspectors and also were given the benefit of promotion notionally taking the date of their first appointment for purposes of seniority, however, without any monetary benefits. The consideration that weighed with the writ court for allowing relief was that the petitioners had applied only for the post of Sub Inspector and, therefore, they could have never been considered for any other post against which they had not applied. It was held that the process of selection for the two posts was separate then there was no basis with the respondents for determining the merit of the petitioners with those, who had actually applied for the post of Sub Inspectors. The observations made by the court drew strength also from the fact that the record pertaining to the selection had not been produced by the official respondents. On the question of delay and laches, the writ court observed that the fact that the petitioners had made representations had not been denied nor was it denied that the same had not been decided by the respondents till the date of the judgment.

09. Aggrieved of the order of the learned Single Judge, the Director General of Police filed a Letters Patent Appeal bearing LPA No. 311/2000, which was dismissed. The judgment and order passed by the Division Bench was further challenged before the Apex Court by in-service Sub Inspectors, who felt that their seniority would be affected by the orders impugned passed by the High Court. The appellants before the Apex Court urged that the High Court had not dealt with the issue of delay and laches in its correct perspective.

Conclusion

10. The Apex Court by virtue of judgment and order dated November 12, 2013 allowed the appeals, set aside the impugned orders passed by the learned Single Judge as also the Division Bench and remanded the matter to the Division Bench of this Court for hearing the writ petition afresh on merits. The Apex court was of the view that this Court had not considered the question of delay and laches in the correct perspective. 2013 allowed the appeals, set aside the impugned orders passed by the learned Single Judge as also the Division Bench and remanded the matter to the Division Bench of this Court for hearing the writ petition afresh on merits. The Apex court was of the view that this Court had not considered the question of delay and laches in the correct perspective.

11. The matter upon remand was considered by the Division Bench, which recorded dissenting judgments. Hence the present reference. recorded dissenting judgments. Hence the present reference.

12. Although the points for determination referred to me for decision include not only the question of delay and laches but also on merits, I first propose to deal with the issue of delay and laches inasmuch the Apex Court had primarily remanded the matter to the High Court on the said issue. include not only the question of delay and laches but also on merits, I first propose to deal with the issue of delay and laches inasmuch the Apex Court had primarily remanded the matter to the High Court on the said issue.

ON DELAY AND LACHES

13. Admittedly, the petitioners were selected and appointed on 17.8.1982 against the post of Assistant Sub-Inspector. They, however, filed the writ petition on 29.11.1990. There was, thus, a delay of more than eight years. At this stage, it would be beneficial to refer to the averments made in the writ petition by the petitioners to see as to whether they had rendered a satisfactory explanation for the delay in filing of the petition. against the post of Assistant Sub-Inspector. They, however, filed the writ petition on 29.11.1990. There was, thus, a delay of more than eight years. At this stage, it would be beneficial to refer to the averments made in the writ petition by the petitioners to see as to whether they had rendered a satisfactory explanation for the delay in filing of the petition.

The explanation can be seen in paragraph 3 of the writ petition, which is reproduced as under:

“That the petitioners have at several occasions submitted their representations to the respondents for the settlement of their grievances in regard to their appointment as Sub-Inspectors instead of ASI since they fulfilled also the requisite and prescribed qualifications and eligibility for Sub-Inspector’s post and as they applied against the said post in pursuant to advertisement notice of 1981. But nothing has been done so far and at each and every occasion of their representations only assurances have been given to them. Now, when the new recruitment to the posts of Sub Inspectors has been made for which the qualifications and eligibility criteria is the same, being graduation as when the petitioner were selected and the case of the petitioners still remains to be settled but the petitioners have lost all hopes for its settlement under the present set of circumstances.”their representations to the respondents for the settlement of their grievances in regard to their appointment as Sub-Inspectors instead of ASI since they fulfilled also the requisite and prescribed qualifications and eligibility for Sub-Inspector’s post and as they applied against the said post in pursuant to advertisement notice of 1981. But nothing has been done so far and at each and every occasion of their representations only assurances have been given to them. Now, when the new recruitment to the posts of Sub Inspectors has been made for which the qualifications and eligibility criteria is the same, being graduation as when the petitioner were selected and the case of the petitioners still remains to be settled but the petitioners have lost all hopes for its settlement under the present set of circumstances.”

14. The official respondents replied paragraph 3 in the following manner: “….Since the petitioners had of their own agreed to be appointed as ASI, the question of making the representations would not arise or accrue to them. Appointment of SIs in the year 1990 would not in any way given any right to the petitioners for being considered for appointment as SI……”“….Since the petitioners had of their own agreed to be appointed as ASI, the question of making the representations would not arise or accrue to them. Appointment of SIs in the year 1990 would not in any way given any right to the petitioners for being considered for appointment as SI……”

15. On a perusal of the pleadings on record, it can be see that the petitioners had failed to give material particulars of the dates when the representations were purported to have been made and filed before the official respondents. None of the copies of the representations are traceable on the record, much less, have any dates been referred to in paragraph 3 of the writ petition. The assertion that representations had been made by the petitioners were, thus, lacking in material particulars. representations were purported to have been made and filed before the official respondents. None of the copies of the representations are traceable on the record, much less, have any dates been referred to in paragraph 3 of the writ petition. The assertion that representations had been made by the petitioners were, thus, lacking in material particulars.

The official respondents in their response have also given a general reply. Notwithstanding the general reply so made, in my opinion, one cannot read in the reply an admission of the fact that actually any such representations were made by the petitioners. The onus lay on the petitioners to furnish material dates and the authority with which the representations had been filed and the method and manner of filing the same. The petitioners have clearly not discharged that onus. A vague reply filed to a vague assertion will not necessarily be construed as an admission by the respondents.

16. The application of the principle of delay and laches to writ proceedings in courts is no longer res integra. In Ramchandra Shankar Deodhar

& ors v. State of Maharashtra & ors, (1974) 1 SCC 317, the Apex court held that there was no inviolable rule whenever there was delay, the court must necessarily refuse to entertain the petition under Article 226. The question was one of discretion to be exercised in the facts and circumstances of each case. Delay and laches was not a rule of law but a rule of practice based on sound and proper exercise of discretion.

17. Another principle that was laid down by the Apex Court and followed in R & M Trust vs. Koramangala Residents Vigilance Group & ors, (2005) 3 SCC 91 was that delay would be an important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution, if the same had resulted in creation of third party interest. 18.The third principle as regards delay and laches can be noticed in the judgment of the Apex Court in the case of State of M.P v. Bhailal Bhai, AIR 1964 SC 1006, which stated that the maximum period fixed by the legislature for grant of relief in a civil suit would ordinarily be reasonable standard for fixing the period to determine delay in seeking remedy under Article 226. The Apex court observed in the said case as under:

“The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.”to the granting of relief under Article 226. However, the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.”

19. However, it does not lay down, as a matter of principle, that in every case, where a petition is filed within the period, which is otherwise prescribed for filing a civil suit for a particular relief, the court must, as a matter of rule, accept the petition and exercise jurisdiction under Article 226. Reference in this regard can be made to the case of Ramana case, where a petition is filed within the period, which is otherwise prescribed for filing a civil suit for a particular relief, the court must, as a matter of rule, accept the petition and exercise jurisdiction under Article 226. Reference in this regard can be made to the case of Ramana Dayaram Shetty vs. The International Airport Authority of India & ors, AIR 1979 SC 1628, where even five months delay was considered to be fatal. The Apex Court in the said judgment observed as follows:

“Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of respondent 4 and during this period, Respondent 4 incurred considerable expenditure aggregating to about Rs 1,25,000 in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most iniquitous to set aside the contracts of Respondent 4 at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of more than five months after the acceptance of the tender of respondent 4 and during this period, Respondent 4 incurred considerable expenditure aggregating to about Rs 1,25,000 in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most iniquitous to set aside the contracts of Respondent 4 at the instance of the appellant. The position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of Respondent 4 but the appellant allowed a period of over five months to elapse during which Respondent 4 altered their position. We are, therefore, of the view that this is not a fit case in which we should interfere and grant relief to the appellant in the exercise of our discretion under Article 226 of the Constitution.”

20. Similar was the view taken by the Apex Court in Ashok Kumar Mishra & anr v. Collector, Raipur & ors, AIR 1980 SC 112.

21. Applying the principles of law crystalized by the Apex Court to the facts and circumstances of the present case, it can be seen that the petitioners have miserably failed to inspire confidence that in fact representations had been filed with the respondents. Even otherwise, notwithstanding the fact that the material particulars regarding the dates of filing of the representations with the respondents are specifically missing yet, merely because such representations are filed, they do not, in any manner, furnish fresh cause of action to the petitioners to file a petition after a delay of more than eight years. Reference in this regard can be made to

C. Jacob vs. Director of Geology and Mining and anr, (2008) 10

SCC 115where the Apex Court in paragraph 10 held thus:

7. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.

22. Be that as it may, the petition suffers from the vice of delay and laches and therefore deserves to be dismissed on that ground alone. This answers questions No. 2 and 3. The other question that had been referred for determination is whether the petitioners had been selected for the post of Sub Inspector and were wrongly given appointment in the lower rank of Assistant Sub-Inspector.

23. Admittedly, the case of the parties is that the petitioners had applied for the post of Sub Inspector. The case of the respondents, however, is that the petitioners were given the appointment against the post of Assistant Sub Inspector inasmuch as they had failed to make the merit for the post of Sub Inspector.

24.

The stand of the respondents is that the records of selection have been destroyed and therefore, were not produced. The stand of the petitioners is that since the respondents had failed to produce the record of selection, it must be presumed that something was fishy with the selection process and the merit of the petitioners was converted into demerit. On the other hand, the respondents annexed with their response, the marks which have been obtained by the petitioners which are 74, 68 and 68 respectively. None of the candidates whose names figured in the list of Sub Inspectors had secured marks as low as the petitioners. No rejoinder is on record to suggest that the marks obtained by the petitioners were actually more than the marks which are stated to have received by candidates whose names figured in the list of Sub Inspectors. The position qua the marks obtained by those who are ultimately selected for the post of Sub Inspector and the petitioners, therefore, cannot be disputed.

25. Although it would have been appropriate for the respondents, in the ordinary course, to produce the record of selection, yet the fact that they did not produce the record would not by itself raise a presumption that the petitioners were more meritorious or that they were to be selected. Apart from anything else, the petitioners are estopped in law in claiming that they had been wrongly denied the benefit of appointment for the post of Sub Inspector inasmuch as they had acquiesced in the appointment against the post of Assistant Sub Inspector. It is not the case set up by the petitioners that they had joined against the post of Assistant Sub Inspector under protest as there is no such averment or material traceable from the writ record. If that be so, the petitioners having acquiesced in accepting the appointment must be deemed to have waived their right to challenge their non-selection and appointment against the post of Sub Inspectors and must be deemed to have elected to be appointed against the post of Assistant Sub Inspector.

26. On the issue of doctrine of election, the Apex Court in the case of Joint Action Committee of Air Line Pilots Association of India (ALPAI) Vs. Director General of Civil Aviation as reported in (2011) 5 SCC 435, paragraph 12 held thus:

“12. The doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.”

27. For the reasons mentioned above, apart from the issue of delay and laches, the petitioners having elected to get appointed as Assistant Sub Inspectors without any reservation, protest or pre-conditions must be deemed to have waived their right to challenge the selection and appointment to the post of Sub Inspector. laches, the petitioners having elected to get appointed as Assistant Sub Inspectors without any reservation, protest or pre-conditions must be deemed to have waived their right to challenge the selection and appointment to the post of Sub Inspector.

28. In my opinion, the judgment and order impugned in the LPA is unsustainable in law and accordingly deserves to be set aside.

29. Disposed of accordingly.

(Dhiraj Singh Thakur) Judge JAMMU 08.07.2019 Naresh. Whether the order is speaking : Yes Whether the order is reportable : Yes