Devendra Kumar Keshri & Ors. vs The State Of Bihar & Ors.

“That this petition is filled for issuance of writ/ writs order/orders and direction/direction to the respondent authorities for amending the qualification clause in the light of notification vide memo no- 432/Desi Chikitsa dated-4/7/1983 which was issued by Sri R.R. Singh Deputy Secretary health, Health Department Govt. of Bihar with regard to qualification of Homeopathy compounder and "Ayurvedić/Unani Compunder i.e. 'Matriculation' for appointment of compounder in the state dispensary, the State of government, Bihar, Patna has notified vacancy for appointment of Aurvedic Misrak dated - 6/5/2016 vide memo no-1593/ Ao by the Secretary, Bihar State staff Selection commission, Patna stating the qualification Intermediate with Biology science ignoring the earlier notification of the state of Bihar. Due to which the valid candidate of the Ayurvedic/ Unani Desi Chikitsa of class III and IV are debar from applying the firm in this vacancies, through they are the valid candidate for compounder in Desi Chikitsa compounder.”

“(A)

For issuance an appropriate writ in the nature of Certiorari for quashing the Advertisement dated 23.09.2013 (Annexure-11 of present I.A.) by which in place of giving the qualification of Ayush Pharmacist, the qualification of B. Pharma and D. Pharma has been mentioned is in contravention of purpose as given in the advertisement itself, as it has mentioned that Pharmacists are appointed to assist the Ayush Doctors, moreover 7,27,15,500/- was sanctioned by the Ministry of Health, Govt. of India for appointment of 1245 Ayush Pharmacist on different additional Health Primary Centre.

(B)

For issuance an appropriate writ in the nature of Certiorari for quashing rejection letter with respect to petitioners (Annexure-15 to present I.A.) who have been disqualified in view of wrong qualification mentioned in the Advertisement and further a direction to appoint the petitioners as Ayush Pharmacists in view of Advertisement (Annexure-11) relaxing the age as they have fulfiled all the requisite conditions and have declared successful in written test.”

“20.

The Court also quoted the following passage from Halsbury's Laws of England (para 911, p. 395) : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, para 12)

“12.

… ‘In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i)

acquiescence on the claimant's part; and

(ii)

any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.’”

21.

Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC p. 471, para 13)

“13.

In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?”

22.2.

However, this principle is subject to well recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

23.

Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated 22-6-1987. The respondents before us did not challenge these cancellation orders till the year 1996 i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only was there unexplained delay and laches in filing the claim petition after a period of 9 years, it would be totally unjust to direct the appellants to give them appointment as of today i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above.”