Dr. S. Shailajakumari v. Kerala State Council for Science, Technology and Environment & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 11[TH] DAY OF JULY 2023/20TH ASHADHA, 1945** **WA NO.639 OF 2023** **AGAINST THE JUDGMENT DATED 13.01.2023 IN WP(C) 24542/2021 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** DR. S. SHAILAJAKUMARI, AGED 53 YEARS, TECHNICAL OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM, KERALA, 695562. RESIDING AT, KEERTHANA BHAVAN, VELLAMKUDI, KALLARA P.O., THIRUVANANTHAPURAM, KERALA, 695608. BY ADVS. V.JAYADHAR V.SURESH KUMAR (HARIPAD) G.PRADEEP KUMAR HAFY PUNTHALA WILSON ## **RESPONDENTS/RESPONDENTS:** 1 KERALA STATE COUNCIL FOR SCIENCE, TECHNOLOGY AND ENVIRONMENT, SASTHRA BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM, KERALA, 695004. (REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT) 2 THE JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN & RESEARCH INSTITUTE (JNTBGRI), PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM, KERALA, 695562, (REPRESENTED BY ITS DIRECTOR) 3 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA, SCIENCE, TECHNOLOGY & ENVIRONMENT DEPARTMENT (STED), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, 695001. WA No.639/2023 4 REGISTRAR & STATE PUBLIC INFORMATION OFFICER JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM, KERALA, 695562. 5 DIRECTOR & APPELLATE AUTHORITY, JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM, KERALA, 695562. 6 SURESH KUMAR T.S., EX-TECHNICAL OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM, KERALA, 695562. RESIDING AT THAIKKAD HOUSE, NAMBAZHIKKAD P.O., MATTAM, THRISSUR, KERALA, PIN: 680602. 7 USHAKUMARI J., TECHNICAL OFFICER, JNTBGRI, PALODE, NOW TRANSFERRED AND WORKING AS, TECHNICAL OFFICER, KSCSTE, SASTHRA BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM, KERALA, 695004. RESIDING AT USHAS, KOLLAYIL P.O., MADATHARA, KOLLAM DISTRICT, KERALA, PIN: 691541. 8 J. ANIL JOHN, TECHNICAL OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM, KERALA, 695562. RESIDING AT ANIL BHAVAN, VIRALI, UCHAKKADA P.O., THIRUVANANTHAPURAM, KERALA, 695506. 9 GOPANRAJ, EX-TECHNICAL OFFICER, JNTBGRI, PALODE, KARIMANCODE P.O., PACHA, THIRUVANANTHAPURAM, KERALA, 695562. RESIDING AT PALAKASSERIL, KANJAVELY P.O., KOLLAM, KERALA, 691602. BY ADVS. SRI.ARAVIND BABU SRI.SURESH KUMAR T.S.,(Party-In-Person) SRI.GOPANRAJ,(Party-In-Person) SRI.C.K.KARUNAKARAN SC FOR (TBGARI)(SC-772) SMT.LEKSHMI P. NAIR(K/001011/2017) SMT.MEKHA MANOJ(K/001711/2023) SRI. PC. SASIDHARAN-SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ALEXANDER THOMAS & C.JAYACHANDRAN, JJ. ------------------------------------------------------------------W.A. No.639 of 2023** _(arising out of the impugned judgment dated 13.01.2023 in WP(C). No.24542/2021)_ ## **---------------------------------------------------------------------------Dated this the 11[th] day of July, 2023** ## **JUDGMENT** ## **C.Jayachandran, J.** The challenge in the subject writ petition, which was preferred in the year 2021, was in respect of a selection made in the year 1998, on the ground of fraudulent denial of employment. However, Exts.P23 and P24 representations preferred by the writ petitioner in the year 1998 itself would would expose the ignorance feigned by the writ petitioner of the fraud alleged. The writ petition was dismissed by the learned Single Judge by the impugned judgment, from which this appeal arose. ## **2.** The facts: The petitioner, who was initially appointed as Lab/Field Assistant in the year 1993 under the 2[nd] respondent/Research Institute, applied for the post of Technical Assistant pursuant to Ext.P2 notification. After the test and interview, 21 candidates were selected and given appointment. However, no rank list was published. Although the petitioner, based on her performance, expected appointment, she did not get it. On enquiry, W.A.No.639/2023 2 the petitioner was told that her performance was not up to the mark, when compared with other candidates. The petitioner believed the same. Later, on 26.08.2000, the petitioner was regularised in the post of Technical Assistant vide Exts.P3 and P4 orders. Subsequently, the post was re-designated as Technical Officer as per Ext.P5 order dated 22.03.2001. In the year 2017, the petitioner overheard a conversation among the members of the committee that is she was also included in the rank list prepared for appointment of Technical Assistant, but was not given appointment, so as to accommodate certain less meritorious candidates. Immediately thereupon, the petitioner preferred Ext.P7 representation dated 13.12.2017, but no reply was given. On 02.02.2018, the petitioner preferred Ext.P7 representation, which also fetched no result. Vide Ext.P8 order dated 30.01.2020, the Information Commission under the Right to Information Act directed that the petitioner should be given a copy of the rank list and accordingly, Ext.P9 copy of the rank list was given to the petitioner. A perusal of the same established that the information received by the petitioner was correct, that she was ranked 18 in the list and that respondents 8 and 9, who were ranked as 20 and 21 were given appointment. There is an averment in the writ petition that the petitioner could not speed up the issue because of COVID-19 pandemic. In the year 2021, the petitioner W.A.No.639/2023 3 preferred a detailed representation vide Ext.P10, in which also no action ensued. Yet another application was preferred under the Right to Information Act, vide Ext.P11 dated 02.07.2021. In short, the petitioner was fraudulently denied appointment, though she had been included in the rank list and was also eligible. Instead, appointments were given to candidates, who were lower in rank. On such premise, the petitioner sought for a declaration that the petitioner is entitled to get appointed as Technical Assistant on the same date, on which the first candidate was appointed as Technical Assistant as per Ext.P9 ranked list and also for all consequential benefits, including seniority, promotions, pay fixation etc. **3.** The 1[st] respondent filed counter affidavit contending that respondents 8 and 9, who were given appointment were not persons included in Ext.P9 rank list and that there was separate interview conducted for the post of Technical Assistant (Chemistry) in May, 1998, as is evident from Ext.R1(a) call letter issued to the 8[th] respondent. Ext.P9 ranked list is specifically with regard to Technical Assistant (Botany). Separate interview was conducted for the said two posts in April and May, 1998. The 1[st] respondent also contended that on account of the huge delay, in challenging the selection process, the respondents W.A.No.639/2023 4 are unable to effectively answer the contentions raised by the petitioner, since minute details regarding the selection are not available with the 1[st] respondent. **4.** Respondents 2, 4 and 5 have also filed statements contending that the writ petition is hopelessly barred by limitation. Besides, it was also contended that the 7[th] respondent was appointed as Technical Assistant considering her experience in the division of Etheno-Medicine and Etheno-Parmacology and that the 7[th] respondent was not appointed from Ext.P9 ranked list. **5.** The 7[th] respondent filed a counter affidavit contending that she was appointed on contract basis as Lab Assistant on 21.01.1993 vide Ext.R7(a). Though the 7[th] respondent participated in the selection process pursuant to Ext.P2 notification, she was not appointed on the basis of the said selection. Based on Ext.R7(b) note of the Registrar, the 7[th] respondent was appointed as Technical Assistant in Botany considering her service on temporary basis, vide Ext.R7(c). Therefore, challenge against the 7[th] respondent is totally misconceived, is the contention. W.A.No.639/2023 5 **6.** Respondents 8 and 9 contended that they were appointed as Technical Assistant (Chemistry) pursuant to Ext.P2 notification and that Ext.P9 ranked list is only in respect of the post of Technical Assistant (Botany). The 8[th] respondent was included as rank no.1 in the ranked list for Technical Assistant (Chemistry), from which list respondents 8 and 9 were appointed. **7.** To counter the allegations in the counter affidavits of the respondents, the petitioner filed a reply affidavit claiming that she preferred Exts.P23 and P24 representations in the year 1998 itself, which were sought to be produced along with the reply affidavit filed on 25.08.2022. ## **8.** The learned Single Judge dismissed the writ petition, with the following findings: _“15. The respondents 7, 8 and 9 have specifically stated that it was not on their inclusion in Ext.P9 ranked list that they were appointed as Technical Assistants in May 1998 and November 1998 respectively. From perusal of the documents produced, this appears to be so. In any view of the matter, I notice that the selections pursuant to Ext.P2 were conducted in April and May, 1998. The appointments now complained of are ones made in May and November 1998. Even if Exts.P23 and P24 representations had been submitted by the petitioner at the relevant time, there is absolutely no reason why no further steps had been taken by the petitioner on the said representations for 20 long years. It is only in 2017 that the petitioner admittedly raises the issue before the respondents and makes a request under the Right to Information Act, 2005._ W.A.No.639/2023 6 _16. In the facts and circumstances of the instant case, I am of the opinion that requiring the respondents to defend an appointment made in the year 1998 through a writ petition filed in the year 2021 would itself be unjustified and since 20 long years have been elapsed without a whisper of a challenge being made by the petitioner against the said appointments.”_ **9.** Heard Sri.V.Jayadhar, learned counsel for the appellant(writ petitioner) and Sri.C.K.Karunakaran, learned Standing Counsel for respondents 2, 4 and 5. Both counsel have also placed written submissions before us. **10.** Having heard the learned counsel appearing for both sides, we find no reason to interfere with the well considered judgment of the learned Single Judge. The very allegation raised by the petitioner is one of fraud and going by the averments in the writ petition, the memorandum of appeal and also the written submissions, the appellant/petitioner specifically contends that fraud vitiates everything and that the period of limitation would start running only from the date of knowledge of the fraud. It is based on this legal premise that the appellant/petitioner seeks to get over the huge delay of more than two decades in challenging a selection made in the year 1998. **11.** However, the following averments in the reply affidavit preferred W.A.No.639/2023 7 ## by the appellant/petitioner is relevant and is extracted herein: _“ 4. …...But the mandatory provision of publication of the ranked list after a due process of selection was not complied with by the 2[nd] respondent. True copy of the representation dated 2905-1998 filed by the petitioner before the 4[th] respondent is produced herewith and marked as_ _**ExhibitP23.**_ _5. Ext. P23 representation did not yield any result. The petitioner was anxiously waiting for publication of the ranked list and also the publication of the marks secured by the appointed candidates as well as that of the petitioner. But there was no response from the 2[nd] respondent. Thereupon the petitioner again submitted a representation to the 4[th] respondent requesting to furnish the details regarding the appointees as well as the marks and rank of the petitioner. True copy of the representation filed by the petitioner before the 4[th] respondent dated 23-11-1998 is produced herewith and marked as_ _**Exhibit P24.** Ext P24 representation also did not yield any result. The petitioner has been wailing for a response pursuant to Ext. P23 and P24. But so far the same is not received.”_ **12.** It could thus be seen that the petitioner had preferred Exts.P23 and P24 representations way back on 29.05.1998 and 23.11.1998 respectively, wherefore, she has no explanation as to why she had not pursued the matter for a long and inordinate period of 20 years. In this regard, it is pertinent that the Freedom of Information Act was introduced in the year 2002 and the Right to Information Act, in the year 2005 and the petitioner did not choose to take recourse to the provisions of the said legislation on time. Even the earliest of the representations preferred by the petitioner is of the year 2017, that too based on a plea that she had overheard the conversation of the members of the Committee. In the light of Exts.P23 and P24, the versions put W.A.No.639/2023 8 ## forward by the appellant/petitioner can hardly be accepted. **13.** It is by now settled that a court of judicial review under Article 226 of the constitution cannot grant relief, unless the petitioner approaches the court within a reasonable time. The legal position in this regard was settled way back in the year 1970 in _**Tilokchand Motichand and**_ _**others v. H.B.Munshi, Commissioner of Sales Tax, Bombay and another**_ [AIR 1970 SC 898] by a three Judges bench of the Honourable Supreme Court. It was held in paragraph 7 that a party claiming fundamental right must move the court before other rights come into existence. The action of courts cannot harm innocent parties, if their rights emerge by reason of delay on the part of the person moving the court. The Supreme Court held that the principle is well recognised and has been applied by courts in England and America. The Honourable Supreme Court also took stock of the principle that the courts help those, who were vigilant and do not slumber over their rights. In _**A Court v. Cross**_ [130 English Reports 540], it was held “ _Long dormant claims have often more of cruelty than on justice in them._ ” Again in _**Rabindra Nath Bose and others v. Union of India and others**_ [AIR 1970 SC 470], a five Judges Bench of Honourable Supreme Court held as follows: W.A.No.639/2023 9 - _“34. The learned counsel for the petitioners strongly urges that the decision of this Court in Trilokchand and Motichand's case, (1969) 1 SCC 110 (Supra) needs review. But after carefully considering the matter, we are of the view that no relief should be given to petitioners, who without any reasonable explanation, approach this Court under Article 32 of the Constitution after inordinate delay. The highest Court in this land has been given Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay._ _35. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. ………………………”_ **14.** Recently, a three Judges bench of Honourable Supreme Court in _**Chairman/Managing Director, Uttar Pradesh Power Corporation Limited and others v. Ram Gopal**_ [(2021) 13 SCC 225] reiterated the principle in paragraph 11 holding that the writ courts ought to be naturally reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allow illegalities to fester. **15.** The learned Single Judge had exercised the discretion under Article 226 of the Constitution to dismiss the writ petition on the ground of inordinate delay and laches, with which findings, we concur. We find W.A.No.639/2023 10 no infirmity, much less any illegality, in the findings of the learned Single Judge in the impugned judgment. This appeal fails and the same is therefore dismissed. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** ww