HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP (C) No. 579/2020

CM No. 1217/2020

Reserved On: 6

th

of October, 2023.

Pronounced On: 12

th

of October, 2023.

Mohd. Rustum Sheikh, Age: 35 Years

S/o Assadullah Sheikh

R/o Gantamulla Payeen, District Baramulla.

… Petitioner(s)

Through: -

Mr M. A. Khan, Advocate.

V/s

1. High Court of Jammu & Kashmir,

Through Principal Secretary to Chief Justice,

Srinagar/ Jammu.

2. Principal District and Sessions Judge, Baramulla.

3. Munsiff, Boniyar.

… Respondent(s)

Through: -

Mr Shah Aamir, Advocate.

CORAM:

Hon’ble Mr Justice Tashi Rabstan, Judge

Hon’ble Mr Justice Rahul Bharti, Judge

(JUDGMENT)

(Tashi Rabstan-J):

01. The petitioner, through the medium of the instant petition,

seeks the grant of following relief(s) in his favour:

“(a) Writ, order or direction in the name of Mandamus

commanding the respondents to re-employ him and also release in

his favour back wages for he has been illegally dealt with; and

(b) Any other order or direction which this Hon’ble Court

may deem fit and proper in the facts and circumstances of the case

be also passed in favour of the petitioner.”

02. The petitioner claims that in terms of communication No.

7510/AC dated 8

th

of September, 2006, one Shri Himmat Singh Bloria, the

then Accounts Officer of the High Court of Jammu & Kashmir and Ladakh,

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CM No. 1217/2020

Page 2 of 6

addressed to the Munsiff, Judicial Magistrate 1

st

Class, Boniyar (Uri), made

a request to process the case of the engagement of the petitioner and for

obtaining sanction of the competent authority in this behalf. Thereafter, the

petitioner is stated have been engaged as a Sweeper on part time basis on a

consolidated monthly payment of Rs. 350/- in the Court of Munsiff,

Boniyar vide order No. 500 dated 27

th

of November, 2006 on the following

conditions:

i. That the payments are of purely contingent character drawn

on contingent bills and may be withdrawn at any time at

discretion of the department;

ii. That the allowance will not count for leave and pension;

iii. That the work to be done is really necessary; and

iv. That the allowance does not get to a menial or inferior

servants in permanent employ in receipt of a monthly rate of

pay.”

Accordingly, the petitioner is stated to have joined the

aforesaid duties on 9

th

of February, 2007. It is contended that the petitioner

is continuously working as a Daily Wager in terms of his engagement.

03. The petitioner states that he moved a representation dated 26

th

of April, 2007 endorsed to the respondent No.3 for enhancing the

remuneration of Rs.350/- to Rs.2100/- per month, as was being paid to other

similarly situated Sweepers working in different Courts. It is contended that

the respondent No.3, vide communication dated 29

th

of November, 2008,

while forwarding the application of the petitioner for regularization of his

services and payment of wages as a full-time Daily Wager, informed the

respondent No.2 that the petitioner is working as a Daily Wager on full time

basis as Sweeper and Chowkidar. This representation, in original, was,

thereafter, submitted by the respondent No.2 to the Principal Secretary to

Hon’ble the Chief Justice, High Court of Jammu & Kashmir for

consideration, but despite that the grievance of the petitioner was not

redressed even after lapse of considerable period of time. It is pleaded that,

thereafter, the Munsiff, Boniyar informed the petitioner to perform his

duties only twice a week, instead of performing the same regularly. This

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process is stated to have continued for a long time and, while the said

process was going on, the Munsiff concerned informed the petitioner that

his services are no more required and, therefore, he can do his job

independently anywhere else. In these circumstances, the petitioner claims

to have requested the Munsiff, Boniyar that he cannot restrain the petitioner

to perform his duty in view of the fact that his engagement order has been

issued by the High Court. Ultimately, in the month of July, 2013, the

petitioner was not allowed to mark his attendance, though the respondents

did not issue any formal order for restraining the petitioner from performing

his duty. The petitioner claims to have filed various representations before

the competent authorities from time to time for seeking the redressal of his

grievance, however, the same did not yield any response, constraining the

petitioner to approach this Court through the medium of the present writ

petition seeking a writ of mandamus, thereby commanding the respondents

to re-employ him and also for releasing his back wages.

04. Reply has been filed on behalf of the respondents, wherein it

has been admitted that the petitioner was initially engaged as a Sweeper on

part time basis on a consolidated monthly payment of Rs.350/- in the

Munsiff, Court Boniyar vide order dated 27

th

of November, 2006 and the

Petitioner, accordingly, joined on the said engagement on 9

th

of February,

2007. It is averred that the monthly consolidated wages were being paid to

the petitioner up to November, 2010, whereafter the petitioner did not

attend his duties and, resultantly, another person, namely, Imtiyaz Ahmad

Lone was engaged as a Sweeper initially on a monthly consolidated wages

of Rs.400/-, whereafter, his wages were enhanced to the tune of Rs.2000/-

per month. It is also submitted that the said Sweeper is being paid the wages

for the days he actually works as per the prevailing rates of Daily Wagers in

view of Government order No. 842 dated 21

st

of January, 1998.

05. We have heard the learned Counsel for the parties and have

perused the pleadings on record.

06. Admittedly, the petitioner was engaged as a Sweeper in terms

of Order No. 500 dated 27

th

of November, 2006 on part time basis on a

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consolidated monthly wages of Rs. 350/- in Munsiff Court, Boniyar and, he,

accordingly, joined the said duties on 9

th

of February, 2007. The petitioner

appears to have made a representation before the respondents to the effect

that he has been given lesser monthly wages than a similarly situated

employee, namely, Imtiyaz Ahmad Lone, who too was engaged as a

Sweeper and was initially being paid monthly wages of Rs.400/-, however,

his monthly wages were enhanced to the tune of Rs.2,000/-. It is the stand

of the respondents that the petitioner was allowed to discharge his duties as

Sweeper in the Court of Munsiff, Boniyar till November, 2010, for which

the respondents have released the wages in his favour in tune with his

engagement. Thereafter, the petitioner was asked to perform duty only

twice a week for some time and, subsequently, in the year 2013, the

petitioner was restrained from performing his duty as Sweeper on daily-

wage basis on the ground that the petitioner seems to have remained absent

from duty and as such, in his place, one Imtiyaz Ahmad Lone has been

engaged as Sweeper.

07. Learned counsel for the petitioner, when asked as to what

prevented the petitioner to approach this Court at the relevant point of time

when he was restrained to perform his duties as Sweeper in the year 2013,

contended that the petitioner approached the respondents by filing a series

of representations against his discontinuation as a Sweeper on daily wage

basis, prior to filing of the instant writ petition in the year 2020.

08. Learned counsel appearing for the respondents has contended

that a person seeking relief against the State under Article 226 of the

Constitution of India, be it a citizen or otherwise, cannot get discretionary

relief available thereunder, unless he/ she fully satisfies the Court that the

facts and circumstances of the case clearly justify the laches and undue

delay on his/ her part in approaching the Court for grant of such

discretionary relief and, therefore, where the Court grants relief to a citizen

or any other person under Article 226 of the Constitution against any

person, including the State, without considering his/ her blameworthy

conduct, such a laches or undue delay, acquiescence or waiver, the relief so

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granted becomes unsustainable even if the relief was granted in respect of

alleged deprivation of his/ her legal right by the State.

09. The Hon’ble Supreme Court in case titled ‘Sudhi Vishnu

Panvalkar v. Bank of India’, reported as ‘AIR 1997 SC 2248’, dismissed

the writ petition which was filed after three years and six months upon

passing of the impugned order therein.

10. In case titled ‘Scooters India & Ors. v. Vijai E. D. Eldered’,

reported as ‘1998 (6) SCC 549’, the Hon’ble Apex Court has held that a

writ petition, which has been filed six years after passing of the impugned

order therein, was not maintainable.

11. In yet another case titled ‘State of Orissa v. Zlochan Nayak’,

reported as ‘2003 (10) SCC 678’, it was held by the Hon’ble Apex Court

that a writ petition filed after a gap of three years was not maintainable and,

accordingly, dismissed the same on the grounds of delay and laches.

12. A similar view has been taken by the Hon’ble Apex Court in

the case of ‘Govt. of West Bengal v. Tarun K. Roy’, reported as ‘2004 (1)

SCC 347’, as well as in case titled ‘Ghulam Rasool Lone v. State of

Jammu & Kashmir’, reported as ‘2009 (AIR) SCW 5260’, wherein the

Hon’ble Supreme Court was of the view that the discretionary jurisdiction

under Article 226 of the Constitution can be denied on the ground of delay

and laches.

13. Even, in case titled ‘Banda Development Authority v. Moti

Lal Agarwal’, reported as ‘(2011) 5 SCC 394’, the Hon’ble Apex Court

held that even if the objection of delay and laches had not been raised by

the other side, the High Court was duty bound to take cognizance of the

long-time gap of nine years between the issue of declaration/ order and

filing of the writ petition and, accordingly, declined the relief to the

petitioner on the ground that he was guilty of laches.

14. It is the case of the petitioner that before approaching the High

Court by filing a writ petition, he approached the Respondents by filing

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various representations and, therefore, there is no delay and laches on his

part for seeking the redressal of his grievance.

15. Filing of series of representations neither gives rise nor revives

the cause of action, if it had already arisen in the past. The petitioner has

admitted in the writ petition that he was denied to resume his duties as back

as in the year 2013 and, as such, he was required to seek a declaration of his

continuity or have a writ of mandamus issued for his reinstatement at the

relevant point of time from the competent forum. He, however, did not do

either, which leaves no room for doubt that the petitioner has slept over his

rights and has allowed the grass to grow under his feet for a long duration

of over seven years.

16. Taking into consideration the cumulative effect of the facts and

circumstances of the case, coupled with the settled principles of law on the

subject, we are satisfied that the claim of the petitioner is stale, highly

belated, time-barred and the same cannot be entertained by this Court after

a span of over seven years. Viewed, thus, the present writ petition fails and

the same is, accordingly, dismissed, along with the connected CM(s).

Interim direction(s), if any subsisting as on date, shall stand vacated.

(Rahul Bharti) (Tashi Rabstan)

Judge Judge

SRINAGAR

October 12

th

, 2023

“TAHIR”

i. Whether the Judgment is reportable? Yes.

ii. Whether the Judgment is speaking? Yes.