filing a petition and such delay is not satisfactorily explained, the High
Court may decline to intervene and grant relief in the exercise of its writ
jurisdiction.?
Emphasis was laid on the principle of delay and laches stating that resort to
the extraordinary remedy under the writ jurisdiction at a belated stage is
likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly
brushed aside. A writ court is required to weigh the explanation offered and
the acceptability of the same. The court should bear in mind that it is
exercising an extraordinary and equitable jurisdiction. As a constitutional
court it has a duty to protect the rights of the citizens but simultaneously
it is to keep itself alive to the primary principle that when an aggrieved
person, without adequate reason, approaches the court at his own leisure or
pleasure, the Court would be under legal obligation to scrutinize whether the
lis at a belated stage should be entertained or not. Be it noted, delay comes
in the way of equity. In certain circumstances delay and laches may not be
fatal but in most circumstances inordinate delay would only invite disaster
for the litigant who knocks at the doors of the Court. Delay reflects
inactivity and inaction on the part of a litigant ? a litigant who has
forgotten the basic norms, namely, ?procrastination is the greatest thief of
time? and second, law does not permit one to sleep and rise like a phoenix.
Delay does bring in hazard and causes injury to the lis.
17.In the case at hand, though there has been four years? delay in
approaching the court, yet the writ court chose not to address the same. It
is the duty of the court to scrutinize whether such enormous delay is to be
ignored without any justification. That apart, in the present case, such
belated approach gains more significance as the respondent-employee being
absolutely careless to his duty and nurturing a lackadaisical attitude to the
responsibility had remained unauthorisedly absent on the pretext of some kind
of ill health. We repeat at the cost of repetition that remaining innocuously
oblivious to such delay does not foster the cause of justice. On the
contrary, it brings in injustice, for it is likely to affect others. Such
delay may have impact on others? ripened rights and may unnecessarily drag
others into litigation which in acceptable realm of probability, may have
been treated to have attained finality. A court is not expected to give
indulgence to such indolent persons - who compete with ?Kumbhakarna? or for
that matter ?Rip Van Winkle?. In our considered opinion, such delay does not
deserve any indulgence and on the said ground alone the writ court should
have thrown the petition overboard at the very threshold.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2016
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P(MD)No.2145 of 2016
and
W.M.P.(MD)No.1867 of 2016
G.Uma Maheswari .. Petitioner
Vs.
The Secretary to Government,
PRAYER : Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Mandamus directing the respondents to award 15
marks for the petitioner for the experience of the petitioner in the light of
the notification of the 2nd respondent in Advertisement No.4/2013, dated
28.05.2013 and as per the orders in W.P.(MD)No.2274 & 2275 of 2014, dated
11.02.2014 and G.O.Ms.No.502 of the 1st respondent, dated 31.12.2015 and
consequently direct the petitioners to appoint the petitioner as Assistant
Professor in Zoology in any one of the government colleges with all monetary
and attendance benefits on par with other eligible candidates.
This Writ Petition has been filed by the petitioner for issuing a Writ
of Mandamus directing the respondents to award 15 marks to the petitioner for
her teaching experience as per the notification of the second respondent
Board, dated 28.05.2013 and as per G.O.Ms.No.502, Higher Education (F2)
Department, dated 31.12.2015 and consequently, direct the respondents to
appoint the petitioner as Assistant Professor in Zoology in any one of the
Government Colleges.
2.The brief facts which are necessary for the disposal of the above
writ petition are summarised as follows:
2.1.The petitioner belongs to Backward Class community and she is
possessing the qualifications namely, B.Sc., M.Sc., M.Phil., Ph.D., and all
these qualifications are in the discipline of Zoology. At present, the
petitioner is working as Assistant Professor in Zoology Department in Maruthu
Pandiar College, Vallam, Thanjavur District, which is a self-finance college
under Bharathidasan University.
2.2.The petitioner has completed her B.Sc., in April, 1987; completed
M.Sc., in May, 1989; completed M.Phil., in September, 1991 and completed
Ph.D., in February, 2011.
2.3.The petitioner has teaching experience of 7 + years as on
30.06.2013 as she is working as Assistant Professor in the private college
from 01.01.2003 to 31.12.2007 and from 08.02.2011 to 30.06.2013.
2.4.The second respondent Board issued an advertisement on 28.05.2013
calling for applications to fill up the post of Assistant Professors in the
Government colleges. Out of 1093 vacancies in various departments, the total
vacancies in the Zoology Department is 60. Being a woman, belong to Backward
Class community, the petitioner is eligible to compete to be considered for
14 vacancies out of 60 having regard to the availability of posts under
general and women categories and backlog vacancies. Hence, the petitioner
submits that her prospects was bright. The second respondent has indicated
about the weightage marks to be given to the candidates. It is admitted that
maximum of 15 marks can be awarded for teaching experience. Maximum of 9
marks can be awarded to qualifications and 10 marks is reserved for
interview. Thus, the total marks is only 34. Though the petitioner was
called for an interview after successful process of the first two stages, she
submits that she was given only 9 marks for her teaching experience and
another 9 marks for her qualifications. Since she secured only 7 marks in
the interview, she could make only 25 out of 34. It is also a fact that the
cut off mark for Backward Class (Women Category) is 30. It is the case of
the petitioner that she is eligible for the entire 15 marks for the teaching
experience, only 9 marks were awarded to the petitioner without assigning any
reason. Since the petitioner has completed her Ph.D., in 2011 and had
completed her M.Phil., in September, 1991, the entire period of service in
the private college should be taken to calculate as teaching experience for
the purpose of awarding weightage marks. Since only 9 marks were awarded to
the petitioner, the total marks obtained by the petitioner fell short of 30.
In other words, it is contended by the petitioner that had she been given
full weightage marks for her teaching experience which she is entitled to,
the petitioner would have been given 31 marks out of 34 and it is well above
the cut-off mark.
3.The learned counsel appearing for the petitioner has brought to the
notice of this Court a judgment of this Court in W.P.(MD)Nos.2274 and 2275 of
2014, dated 11.02.2014 wherein this Court has directed to award full
weightage marks to those candidates who have acquired M.Phil., degree before
1993. Since based on the judgment of this Court in the writ petition, the
first respondent has passed a Government Order on 31.12.2015 directing the
appointment of those teachers, the petitioner persuaded this Court to pass
similar order or direction in this writ petition for directing the
respondents to appoint the petitioner as Assistant Professor in Zoology
Department with all monetary and attendant benefits on par with other
candidates who have been recruited in this process. The learned counsel for
the petitioner relied upon the notification issued by the Teachers'
Recruitment Board dated 28.05.2013 and other records and submitted that the
petitioner is eligible to acquire the complement of full marks towards
teaching experience.
4.The second respondent filed a detailed counter affidavit. The sum
and subsistence of the counter affidavit indicate that the second respondent
has raised only the plea of laches rather than defending the case on any
other legal grounds except contending that the petitioner is eligible only
for fourteen marks as on account of her teaching experience. The second
respondent submitted that the weightage marks to be awarded to the candidates
for the teaching experience and for their higher educational qualifications
in the subject were indicated in clause 13 of the prospectus of the second
respondent board. The candidates are entitled to weightage marks of 2 for
each year of teaching experience subject to a maximum of 15 marks. The
petitioner though has stated that she had 7+ years of teaching experience,
her actual teaching experience is 7 years 4 months and 21 days. Hence, the
petitioner is entitled to only 14 marks towards teaching experience. It is
also stated that necessary corrigenda were also issued in compliance with the
final orders of this Court in various writ petitions. It is stated by the
second respondent that the petitioner attended certificate verification on
04.12.2013. It is the contention of the second respondent that the marks
awarded to all the candidates including the petitioner in certificate
verification were published on the website of the second respondent board on
01.10.2014. It has been further stated in the counter affidavit that an
additional certificate verification through a special camp was also conducted
from 01.07.2014 to 07.07.2014 to provide another opportunity to all the
candidates to seek clarification in case of any omission or error in the
marks awarded during certificate verification conducted earlier from
25.11.2013 to 06.12.2013. For the subject Zoology, the second respondent
submits that the additional certificate verification camp was conducted at
Quaid-E-Milleth Government Arts College for Women, Chennai, on 03.07.2014.
5.It is further submitted by the second respondent that after the
additional certificate verification, the oral interview for the subjects of
Zoology, Botany, English and Aquaculture was conducted from 13.10.2014 to
17.10.2014. It is also contended by the second respondent that the
provisional mark list of the candidates after oral interview was even
published on the website of the second respondent board on 20.10.2014. The
provisional selection list of candidates, after oral interview, for the
subjects of Zoology, Botany, English and Aquaculture was also published in
the website of the second respondent board on 03.11.2014. Hence, on the
above factual matrix, the second respondent would contend that the petitioner
failed to avail herself all the opportunities extended to the candidates by
way of additional certificate verification camp. The petitioner had an
opportunity to ventilate her grievance by submitting a representation either
at the time of additional certificate verification or at any time immediately
after the marks obtained by the petitioner was known to her.
6.Admittedly, in this case, the marks awarded to the candidates in
certificate verification were published in the website of the second
respondent board on 01.10.2014. Hence, an inference can be drawn that the
petitioner had knowledge of the marks awarded to her at the time of
verification of certificate. The very object behind the announcement of a
special camp for additional certificate verification is to give a fair
opportunity to the candidates to ventilate their grievance so as to avoid any
complication at a later point of time. The petitioner did not raise any
objection of her entitlement to get the full marks of 15 for her teaching
experience. At least, the petitioner could have come forward immediately
after the publication of the provisional selection list of the candidates,
after the oral interview on 03.11.2014. However, the petitioner appears to
have waken up after the order passed by the Government vide G.O.Ms.No.502,
Higher Education (F2) Department, dated 31.12.2015 pursuant to the order of
this Court in W.P.(MD) Nos.2274 and 2275 of 2014. Unfortunately, the
petitioner has come forward with the present writ petition long after the
completion of the whole selection process. Since the writ petition is filed
only during the last week of January, 2016, the petitioner's present writ
petition appears to be belated and liable to be dismissed on the simple
ground of laches.
7.The candidates who were selected and appointed in the posts of
Assistant Professors in Zoology Department, who were likely to be affected by
granting the relief to the petitioner in this writ petition, are not
impleaded in this present writ petition. Since the petitioner is entitled
only for 14 marks towards teaching experience, her total marks would be just
30 marks and not 31 marks as contended by her. It is for this reason, she
might not be interested in making a representation or filing a writ petition
at the appropriate time.
8.The Hon'ble Supreme Court in the judgment in Chennai Metropolitan
Water Supply and Sewerage Board and others vs. T.T.Murali Babu reported in
(2014) 4 SCC 108 has held as follows:
14. In State of Maharashtra v. Digambar (1995) 4 SCC 683 , while dealing with
exercise of power of the High Court under Article 226 of the Constitution,
the Court observed that:
?19. Power of the High Court to be exercised under Article 226 of the
Constitution, if is discretionary, its exercise must be judicious and
reasonable, admits of no controversy. It is for that reason, a person's
entitlement for relief from a High Court under Article 226 of the
Constitution, be it against the State or anybody else, even if is founded on
the allegation of infringement of his legal right, has to necessarily depend
upon unblameworthy conduct of the person seeking relief, and the court
refuses to grant the discretionary relief to such person in exercise of such
power, when he approaches it with unclean hands or blameworthy conduct.?
15. In State of M.P. v. Nandlal Jaiswal reported in (1986) 4 SCC 566, the
Court observed that:
?24. ...it is well settled that power of the High Court to issue an
appropriate writ under Article 226 of the Constitution is discretionary and
the High Court in exercise of its discretion does not ordinarily assist the
tardy and the indolent or the acquiescent and the lethargic.?
It has been further stated therein that:
24. ... If there is inordinate delay on the part of the petitioner in
filing a petition and such delay is not satisfactorily explained, the High
Court may decline to intervene and grant relief in the exercise of its writ
jurisdiction.?
Emphasis was laid on the principle of delay and laches stating that resort to
the extraordinary remedy under the writ jurisdiction at a belated stage is
likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly
brushed aside. A writ court is required to weigh the explanation offered and
the acceptability of the same. The court should bear in mind that it is
exercising an extraordinary and equitable jurisdiction. As a constitutional
court it has a duty to protect the rights of the citizens but simultaneously
it is to keep itself alive to the primary principle that when an aggrieved
person, without adequate reason, approaches the court at his own leisure or
pleasure, the Court would be under legal obligation to scrutinize whether the
lis at a belated stage should be entertained or not. Be it noted, delay comes
in the way of equity. In certain circumstances delay and laches may not be
fatal but in most circumstances inordinate delay would only invite disaster
for the litigant who knocks at the doors of the Court. Delay reflects
inactivity and inaction on the part of a litigant ? a litigant who has
forgotten the basic norms, namely, ?procrastination is the greatest thief of
time? and second, law does not permit one to sleep and rise like a phoenix.
Delay does bring in hazard and causes injury to the lis.
17.In the case at hand, though there has been four years? delay in
approaching the court, yet the writ court chose not to address the same. It
is the duty of the court to scrutinize whether such enormous delay is to be
ignored without any justification. That apart, in the present case, such
belated approach gains more significance as the respondent-employee being
absolutely careless to his duty and nurturing a lackadaisical attitude to the
responsibility had remained unauthorisedly absent on the pretext of some kind
of ill health. We repeat at the cost of repetition that remaining innocuously
oblivious to such delay does not foster the cause of justice. On the
contrary, it brings in injustice, for it is likely to affect others. Such
delay may have impact on others? ripened rights and may unnecessarily drag
others into litigation which in acceptable realm of probability, may have
been treated to have attained finality. A court is not expected to give
indulgence to such indolent persons - who compete with ?Kumbhakarna? or for
that matter ?Rip Van Winkle?. In our considered opinion, such delay does not
deserve any indulgence and on the said ground alone the writ court should
have thrown the petition overboard at the very threshold.
9.Having regard to the admitted facts and sequences of events referred
to in the previous paragraphs, I am of the view that this Writ Petition is
liable to be dismissed on the ground of laches as entertaining this writ
petition at this stage would pave way for considerable inconvenience to the
respondents and likely to disturb the rights of others which would only lead
to multiplicity of proceedings. The petitioner is not vigilant and there is
no diligence on her part particularly when there is no explanation for the
delay of about two years in approaching this Court. Accordingly, this Writ
Petition is dismissed on the ground of laches. However, there is no order as
to costs. Consequently, the connected miscellaneous petitions are closed.
To
1.The Secretary to Government,
Higher Education (F2) Department,
Government of Tamil Nadu,
Fort St. George, Chennai ? 600 009.
2.The Member Secretary,
Teachers Recruitment Board,
Chennai ? 600 006.
.
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