Manisha v. Virat And Another
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"Thereafter, matter has been pending in this Court for more than 5 years. No doubt, during the intervening pandemic period, certain delays were unavoidable. Regardless, even if two years are attributable to pandemic, it is rather intriguing that department has still taken more than three years to react to the aforesaid order. In the premise, I am left with no choice but to draw an adverse inference and dispose of the petition with a direction to the respondents that, subject to availability of post as on today, candidature of the petitioner be considered. In case, she is found eligible and meritorious, she be accorded benefit thereof. However, it is made clear that, in case, any favourable order is passed, for the period she remained out of service, she will not be
entitled to any monetary benefits on the principle of 'no work no pay'. She shall be also be put on the bottom of the seniority list, in the category she had originally applied.
Needful exercise be carried out within a period of two months from the date petitioner approaches the competent authority with copy of the instant order. Webprint of the court order shall suffice.
Disposed of accordingly."
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1The petitioner alleges violation of the order dated 31.08.2022, which reads as under:
"Petition herein inter alia is for issuance of a writ in the nature of certiorari for quashing the result dated 4.10.2013 (Annexure P 5),as well as, the final selection list vide which 278 posts for Female Supervisor in the Woman and Child Development Department, Haryana have been filled up pursuant to Advt. No. 01/2011 Cat. No. 3.
The facts of the case and the merits thereof need not be gone into at this stage, since matter was earlier heard at length by Ajay Tewari J.,(as he then was in this Court)
and following order dated 17.02.2017 was passed:
"Pursuant to the last order, affidavit of Smt. Shashi Doon, Additional Director, Women and Child Development Department on behalf of respondent No.3 has been filed.
As per the same, respondents No.4, 9, 17, 20, 25, 35, 36, 43, 45, 51, 55, 60, 67, 68, 74, 75, 81, 86, 87, 89 and 118 have been duly informed about the next date of hearing, vide memo. dated 3.2.2017.
Service is deemed to be complete.
Learned Addl. AG Haryana seeks a short adjournment.
Adjourned to 21.4.2017."( ).
Thereafter, matter has been pending in this Court for more than 5 years. No doubt, during the intervening pandemic period, certain delays were unavoidable. Regardless, even if two years are attributable to pandemic, it is rather intriguing thatdepartment has still taken more than three yearsto react to the aforesaid order.In
the premise, I am left with no choice but to draw an adverse inference and dispose of the petition with a direction to the respondents that, subject to availability of post as on today, candidature of the petitioner be considered. In case, she is found eligible and meritorious, she be accorded benefit thereof. However, it is made clear that, in case, any favourable order is passed, for the period she remained out of service, she will not be entitled to any monetary benefits on the principle of 'no work no pay'. She shall be also be put on the bottom of the seniority list, in the category she had originally applied.
Needful exercise be carried out within a period oftwo months from the date petitioner approaches the competent authority with copy of the instant order. Webprint of the court order shall suffice.
Disposed of accordingly."
Counsel for the petitioner has submitted that in pursuance thereof, the respondent No.1 has passed an order dated 02.02.2023, rejecting the claim of the petitioner by observing as under:
"Therefore, in view of abovementioned criteria the petitioner has secured total 41.44 marks (33.44 marks + 08 marks in viva) and the last selected candidate has secured total 50.08 marks and the last selected candidate in waiting list has secured 47.12 marks under General category. Therefore, the petitioner's roll no. does not come in the merit list due to securing lesser marks in the final result.
Thus, in view of the Hon'ble High Court order dated 31.08.2022 passed in CWP 26326 2013 titled as Manisha vs State of Haryana & others, the representation of the petitioner has been decided accordingly." Counsel for the petitioner has further submitted that the same stand was taken by the respondents in the written statement, which was duly considered by the Writ Court when the aforesaid order was passed and despite that after considering the same, the directions were issued. Counsel for the petitioner has referred to the judgment !" # $ % & %' ()*+'""
,),, wherein the Hon'ble Supreme Court in a similar circumstances, in Paragraphs 6 and 13, has observed as under:
") The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years.
A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their
retirement was somewhere between 30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order.
Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much after their retirement. Whether such persons should be granted the same relief or not ?
In view of the statement of law as summarised above, the respondents are guilty since the respondents has 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 while 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 repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence."
Counsel for the petitioner has also relied upon another judgment of the Delhi High Court !' - . /''0 ( *1+ '"2 ,34, wherein while relying upon the aforesaid judgment of the " # $ % & 5 * +, it is observed as under:
", As regards the apprehension of counsel for the respondent that there may be some other candidates who had also secured the same or more marks than the petitioner, but were not considered because of the impugned cut off marks; it is made clear that it is only the petitioner who chose to approach this Court, and, as explained in, Chairman, # $ % & .
% ' . ) *+ '"" ,), it is possible to restrict the relief to be granted to those persons who approach the Court. Consequently, and looking to the fact that nearly four years have passed since the impugned examination was held, the respondents are under no obligation to consider anyone else who has failed to approach this Court in a timely fashion; also for the reason enunciated in the latin maxim, vigilantibus et non dormientibus jura
+ subveniunt the vigilant, and not the sleepy, are assisted by the laws; And, interest reipublicae ut sit finis litium A party who is insensible to his remedies or who does not assert his own claims with promptitude has no right to seek the aid of the State."
Counsel for the petitioner has next argued that as per the information supplied by the Director, Women and Child Development Department, Haryana, Panchkula, to the Secretary of Haryana Staff Selection Commission, Panchkula, on 24.11.2022, 329 post of Supervisor were vacant in the department and a demand has been sent by the department on 11.02.2022 to fill up 188 vacant posts of Supervisor. Since the vacancies are available and a period of about 10 years has lapsed when no one, who is higher in merit as compared to the petitioner has claimed any appointment, the petitioner, in terms of the order dated 31.08.2022 passed by the Writ Court, should be accorded the benefit as there is availability of the post as on today.
Counsel for the State has reiterated the arguments, on the basis of the speaking order that the petitioner was found lower in merit and therefore, no relief can be granted to her.
However, it is not disputed that after the declaration of the result in the intervening period of 10 years, no person other than the petitioner has come forward to claim the appointment.
Accordingly, in view of the judgment of the Hon'ble Supreme Court in " # $ % & 5
* +, the respondents are directed to file fresh compliance affidavit, failing which they will remain present before this Court on the adjourned date. List again on 08.05.2023.
6 To be shown in Urgent List.2
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"9. It is evident that the petitioner has engaged in what can only be described as a frivolous and vexatious litigation spree, seemingly driven by a misplaced sense of grievance. Such conduct constitutes a gross abuse of the judicial process and contributes significantly to the burgeoning pendency of cases before this Court. The tendency of litigants to misuse the judicial forum by engaging in forum shopping, filing repetitive and meritless petitions, and adopting dilatory tactics
undermines the very foundation of our legal system and clogs the administration of justice.
10. The Hon'ble Supreme Court, in / ' 9 ' #$ *+'"",, has cautioned against this emerging category of unscrupulous litigants who, devoid of respect for truth, resort to falsehood and unethical practices in their pursuit of relief. The Supreme Court emphatically held that such litigants, who seek to pollute the stream of justice or who dare to touch the fountain of justice with unclean hands, are not entitled to any relief, interim or final. Relevant extracts of the same is reproduce as under: "In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. Courts have evolved new principles to curb such abuse, and it is now well established that a litigant who attempts to pollute the stream of justice or touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final."
11. The petitioner's conduct in instituting frivolous litigation has resulted in a gross misuse of the judicial process, thereby squandering the valuable time and resources of this Court. It is imperative, in the interest of justice, that bona fide and timely claims are adjudicated expeditiously, without being impeded by vexatious and unscrupulous litigation. At this juncture, reference may be made to the pertinent observations of the Hon'ble Supreme Court in '
= ' # < *,+4'"",8, wherein the Court lamented the pervasive malaise of frivolous litigation afflicting the Indian judicial system. The Hon'ble Apex Court observed as under: "The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession towards senseless and illconsidered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part."
12. The Hon'ble Supreme Court has consistently emphasized the need to deter frivolous appeals and petitions by imposing exemplary costs on the litigating parties. In Writ Petition (Civil) Diary No(s). 27458/2022 titled as ; " 2- '0-
< >6. decided on 01.05.2023, the Hon'ble Apex Court held as follows:
"No legal system can permit a situation wherein a party repeatedly agitates the same issue after it has been conclusively adjudicated by the highest judicial forum. Such conduct amounts to a gross misuse of the judicial process and results in a significant waste of valuable judicial time. Accordingly, the present writ petition is dismissed with costs. However, taking into consideration that the petitioner is a dismissed employee, we deem it appropriate to impose a nominal cost. The writ petition is, therefore, dismissed with costs quantified at ₹10,000/ , to be deposited with the Supreme Court Advocates on Record Welfare Fund, to be utilized for the benefit of the SCBA Library." #
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