Uma Shankar Sharma vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—By this petition, the petitioner, who is a retired Principal, seeks the following reliefs:

10.1. This Hon''ble Court may kindly be pleased to pass a suitable order in favour of the petitioner that he be given the higher scale of pay Rs. 10,000-325-15,200/-.

10.2. That this Hon''ble Court further direct the respondents to immediately take necessary action of the petitioner''s case and he be given all benefits as per the circular dated 19-4-1999.

10.3. That this Hon''ble Court may further be pleased to issue any other writ/order/direction being deemed fit and proper in the facts and circumstances of the case.

10.4. That, this Hon''ble Court may kindly be pleased to dispose of the writ petition at motion stage and direct the respondent authorities immediately to pay all the benefits of kramonnati.

10.5. Any other relief, which this Hon''ble Court may deem fit, according to the facts and circumstances of the case along with the cost of the petition.

Shri Thomas, learned Counsel appearing for the petitioner, would submit that initially the petitioner was appointed as Lecturer by order dated 3-1-1966 (Annexure P-1) and after completion of 18 years of service the petitioner was promoted to the post of Principal by order dated 27-6-1984 (Annexure P-2). The petitioner superannuated from the service on 30-9-2001. The petitioner worked on the post of Principal for 17 years without any promotion. According to the time bound promotion scheme, if any employee has completed more than 24 years of service and gets only one promotion in the entire service period, then the employee is entitled to get the benefit of next higher pay scale. Learned Counsel would further submit that by referring the provisions of the time bound promotion scheme the petitioner submitted representations before the respondent authorities, but till date no action has been taken. Learned Counsel would next submit that the aforesaid benefit has been granted to the persons who are similarly situated to the petitioner. Learned Counsel prays for grant of similar relief to the petitioner also.

The petitioner has not offered any explanation for inordinate delay of 8 years from the date of his superannuation and 10 years from the date of time bound promotion scheme in filing the present petition. The time bound promotion scheme was introduced by the Government in the year 1999. The petitioner superannuated from service in the year 2001. It is well settled principle of law that more than one representation cannot arrest the limitation as even if representation is not considered and order is not passed within a reasonable period of six months, the petitioner ought to have approached the High Court for redressal of his grievance. The petitioner has not done the needful and waited for about 10 years to come to this Court at this belated stage. Thus, this petition cannot be entertained and the same deserves to be dismissed on the ground of unexplained inordinate delay and laches.

The law on the principle of waiver and acquiescence is well settled that, if the person sleeps over his rights and is not vigilant of his rights and acquiesces with the situation, he may not be entitled to the same relief as was granted to other vigilant persons.

A Constitution Bench of the Supreme Court in Chandra Bhushan and Another Vs. Deputy Director of Consolidation (Regional), U.P. and Others, , observed that "normally the question whether a petition under Article 226 of the Constitution for the issue of a writ of certiorari had been presented without undue delay or laches is a question for the High Court to decide and this Court would not interfere with the exercise of the discretion of the High Court".

Further, other Constitution Bench of the Supreme Court in Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, , observed as under:

But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about fifteen years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention....

The learned Counsel for the petitioners strongly urges that the decision of this Court in M/s. Tilokchand Motichand''s case (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.

Later, a Constitution Bench of the Supreme Court in Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, , (Bhagwati, J., in Para 10) observed as under:

...It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches and delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This principle was stated in the following terms by Hidayatulla, C.J., in Tilok Chand v. H.B. Muhshi (supra):

The party claiming Fundamental Rights 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.

In State of M.P. and Others Vs. Nandlal Jaiswal and Others, , it was observed that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactory explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was also observed that if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

The Supreme Court in Chairman, U.P. Jal Nigam and Another Vs. Jaswant Singh and Another, , observed as under:

The question of delay and laches has been examined by this Court in a series of decisions and laches has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution.

On laches and delay in agitating the grievances before the Court, the Hon''ble Supreme Court in State of Punjab and Anr. v. Balkaran Singh (2006) 12 SCC 709 observed as under:

According to us, the suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 years and then come to Court seeking a relief which will upset the seniority of a number of persons who had been shown as seniors in the respective seniority lists. Therefore, on the face of it, a declaratory relief that will have the effect of altering a twelve-year-old and a nine-year-old seniority list could not have been granted by the Courts below.

In Yunus (Baboobhai) A Hamid Padvekar Vs. State of Maharashtra through its Secretary and Others, , the Supreme Court observed as under:

Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers. In an appropriate case the High Court may refuse to invoke its extra-ordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party.

The Supreme Court in Tridip Kumar Dingal and Others Vs. State of West Bengal and Others, , where the appellants took 559 days in approaching the Court, causing unexplained and inordinate delay, observed as under:

We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Article 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a Writ Court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

If the petitioner wants to invoke jurisdiction of a Writ Court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. BhailalBhai, Moon Mills Ltd. v. Industrial Court and Bhoopsingh v. Union of India). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. K.B. Munshi, Durga Prasad v. Chief Controller of Imports & Exports and Rabindranath Bose v. Union of India).

Further,

There is no upper limit and there is no lower limit as to when a person can approach a Court. The question is one of discretion and has to be decided on the basis of facts before the Court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.

This Court in Smt. Shashibala Gandhrala v. State of Chhattisgarh and Ors., W.P. (S) No. 7222 of 2006 (3-1-2007), observed that "the cause of action arose on 6-6-1995, when the communication was sent by the State Government to the authorities for grant of revised pay-scale. The petitioner has not taken any steps ever since till these petitions were filed in December, 2006 and remained tardy and indolent. This belated approach would certainly cause hardship and inconvenience to other side".

Applying well settled principles of law to the facts of the case on hand, the petitioner has not offered any explanation at all for condonation of inordinate delay and laches. The petitioner was promoted as Principal on 27-6-1984. According to the petitioner he became entitled for time bound promotion scheme or kramonnati after completion of 12 years of service in one post, i.e., on 26-6-1996. However, the circular granting benefit of the time bound promotion scheme was introduced in the year 1999. The petitioner accordingly became eligible for grant of time bound promotion scheme ox kramonnati, as the case may be. The petitioner from the date of scheme till filing of this petition, Le., for about 10 years kept quiet and has not taken any steps for redressal of the grievance sought for in this petition, except filing of the representations before the respondent authorities.

For the reasons mentioned hereinabove, the petition is liable to be and is accordingly dismissed at the motion stage itself.