Kartar Singh vs Managing Director, HVPNL and others

This order will dispose of five petitions bearing CWP Nos. 26962, 26972, 27014, 27015 and 27083 of 2015.

The writ petitioners in the bunch of petitions have filed these petitions after their retirement from service, as detailed below:-

CWP Number Date of retirement

CWP No. 26962 of 2015 30.11.2006

CWP No. 26972 of 2015 31.10.2006

CWP No. 27083 of 2015 31.10.2005

CWP No. 27014 of 2015 30.4.2007

CWP No. 27015 of 2015 31.12.2006

The challenge in the writ petitions has been made to the provisions of Order No. 706/Finance dated 27.2.1998 by which the Assured Career

Progression Scheme was circulated. The grievance of the petitioners is that promotees like the petitioners were denied the benefits under the scheme

though it was admissible to the direct recruits.

The preliminary objection raised by the respondents is that the writ petitions are highly belated. In support of this contention, reliance was placed

upon judgment of this Court in Harnam Singh v. State of Punjab and others 2014 (3) PLR 177 (P&H) and order passed in LPA No. 1238 of 2015,

Satinder Pal Singh Walia v. State of Punjab and others decided on 14. 3.2016.

On the other hand, learned counsel for the petitioners, while controverting the contention raised by the learned counsel for the respondents, has

relied upon the order passed by this Court in RSA No. 2177 of 2015, Jagir Singh v. Haryana Vidyut Prasaran Nigam Ltd.and others decided on

18.4.2017 whereby relief was granted to the appellant therein restricting the arrears to 36 months from the date of filing of Civil Suit, especially when

Special Leave Petition against the same was dismissed by Hon'ble the Supreme Court. Reliance was also placed on the judgment of this Court in

Saroj Kumari v. State of Punjab 1998 (3) PLR 123 and of Hon'ble the Supreme Court in Union of India and others v. Tarsem Singh 2008 (4) SCT 19.

The issue regarding delay in invoking extra-ordinary jurisdiction was considered by Hon'ble the Supreme Court in U. P. Jal Nigam and another v.

Jaswant Singh and another, (2006) 11 SCC 464. It was a case in which certain employees raised the issue that they were not liable to be retired at the

age of 58 years but should be permitted to continue in service till they attain the age of 60 years. They were still in service when the writ petitions

were filed. The writ petitions were ultimately allowed.

Placing reliance upon that judgment, some of the employees, who already stood retired, filed writ petitions claiming same benefit. The writ petitions

were allowed by the High Court in terms of its earlier judgment. The judgment of the High Court was impugned before Hon'ble the Supreme Court,

wherein while referring to earlier judgments of Hon'ble the Supreme Court in Rup Diamonds v. Union of India, (1989) 2 SCC 356; State of Karnataka

v. S. M. Kotrayya, (1996) 6 SCC 267; Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 and Government of West Bengal v. Tarun K. Roy, (2004)

1 SCC 347, it was opined that the persons who approach the court at a belated stage placing reliance upon an order passed in some other case earlier,

can be denied the discretionary relief on account of delay and laches. Relevant paragraphs thereof are extracted below:

“5. So far as the principal issue is concerned, that has been settled by this court. Therefore, there is no quarrel over the legal proposition. But the

only question is grant of relief to such other persons who were not vigilant and did not wake up to challenge their reitrement and accepted the same

but filed writ petitions after the judgment of this court in Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300. Whether they are entitled

to same relief or not? Therefore, a serious question that arises for consideration is whether the employees who did not wake up to challenge their

retirement and accepted the same, collected their post-retirement benefits, can such persons be given the relief in the light of the subsequent decision

delivered by this court?

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 reitrement 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 and 2006 much after their retirement. Whether such persons should be granted the

same relief or not?

xx xx xx

Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the court that will unnecessarily

overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and

increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached

the court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for

their retirement, those persons should be allowed to stand to benefit and not others.â€​

[Emphasis supplied]

In A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and others, (2007) 2 SCC 72 5as well, same issue was considered and following the earlier

judgment in U. P. Jal Nigam's case (supra), it was opined as under:

“40. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider

the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to

whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this court. If it is found that the appellant

approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief.â€​

(Emphasis supplied)

The same view was followed by this court in Bal Krishan v. State of Punjab and others, 2013(2) RSJ 18.

In a recent judgment in State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 62,9 Hon'ble the Supreme

Court, while considering the issue regarding delay and laches and referring to earlier judgments on the issue, opined that repeated representations

made will not keep the issues alive. A stale or a dead issue/dispute cannot be got revived even if such a representation has either been decided by the

authority or got decided by getting a direction from the court as the issue regarding delay and laches is to be decided with reference to original cause

of action and not with reference to any such order passed. Delay and laches on the part of a government servant may deprive him of the benefit

which had been given to others. Article 14 of the Constitution of India, in a situation of that nature, will not be attracted as it is well known that law

leans in favour of those who are alert and vigilant. Even equality has to be claimed at the right juncture and not on expiry of reasonable time.

Even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable

time. An order permitting a junior should normally be challenged within a period of six months or at the most in a year of such promotion. Though it is

not a strict rule, the courts can always interfere even subsequent thereto, but relief to a person, who allows things to happen and then approach the

court and puts forward a stale claim and try to unsettle settled matters, can certainly be refused on account of delay and laches. Any one who sleeps

over his rights is bound to suffer. An employee who sleeps like Rip Van Winkle and got up from slumber at his own leisure, deserves to be denied the

relief on account of delay and laches. Relevant paragraphs from the aforesaid judgment are extracted below:

“13. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant

time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The

submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is

interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter,

they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior

employee was promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115, a two-Judge

Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the

challenge to the said rejection thereafter. In that context, the court has expressed thus:-

“Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or

barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the

Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department.

Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh

cause of action or revive a stale or dead claim.â€​

[Emphasis supplied]

In Union of India and others v. M. K. Sarkar, (2010) 2 SCC 59, this Court, after referring to C. Jacob (supra) has ruled that when a belated

representation in regard to a “stale†or “dead†issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to

do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead†issue or time-barred dispute.

The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on

which an order is passed in compliance with a Court's direction. Neither a court's direction to consider a representation issued without examining the

merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.

From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale

claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere

submission of representation to the competent authority does not arrest time. In Karnataka Power Corpn. Ltd. through its Chairman & Managing

Director v. K. Thangappan and another, (2006) 4 SCC 322, the Court took note of the factual position and laid down that when nearly for two

decades the respondent-workmen therein had remained silent mere making of representations could not justify a belated approach.

In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396, it has been opined that making of repeated representations is not a satisfactory

explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik, (1976) 3 SCC 579.

In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, (2011) 4 SCC 374, a three-Judge Bench of this Court reiterated the

principle stated in Jagdish Lal v. State of Haryana, (1977) 6 SCC 538 and proceeded to observe that as the respondents therein preferred to sleep

over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.

In State of T. N. v. Seshachalam, (2007) 10 SCC 137, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant

of service benefit, has ruled thus:-

“... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the

question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive

him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is

well known that law leans in favour of those who are alert and vigilant.â€​

There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be

claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another, (2009) 15

SCC 321.

In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 27,8 the Court has opined that though there is no period of limitation

provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In

the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as

relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.

Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P. S. Sadasivasway v. State of Tamil Nadu, (1975) 1 SCC

152, wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the court at least within

six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article

226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be

a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who

do not approach it expeditiously for the relief and who stand by and allow things to happen and then approach the court to put forward stale claims and

try to unsettle settled matters.

We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be

unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up

from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not

countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated

these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion.

Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the

concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights

are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High

Court. True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation

of pay and the pension. These aspects have not been taken into consideration.

What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But

equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not

the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be

given a new lease of life at any point of time.â€​ [Emphasis supplied]

In Chennai Metropolitan Water Supply and Sewerage Board and others v. T. T. Murali Babu AIR 2014 SC 1141, Hon'ble the Supreme Court

opined as under:

“13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati

and others, AIR 1969 SC 329, the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper

Armstrong Hurd, Abram Farewall, and John Kemp, (1874) 5 PC 221, which is as follows:

“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy,

either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and

neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the

remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against

relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity

of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay

and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course

or the other, so far as relates to the remedy.â€​

In State of Mahrashtra 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 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.

In State of M. P. and others etc. etc. v. Nandlal Jaiswal and others etc. etc., AIR 1987 SC 251, the Court observed that 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 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.

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. 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.â€​

[Emphasis supplied]

As in the case in hand, writ petitions have been filed more than 8-10 years after the retirements of the petitioners from service and challenging

provisions of Order No. 706/Finance dated 27.2.1998, which was issued 17 years before filing of the writ petitions, hence, the same are dismissed on

account of delay and laches.