Shri Jitendra Narayan Pandey vs The State Of Madhya Pradesh on 7 February, 2025

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Madhya Pradesh High Court

Shri Jitendra Narayan Pandey vs The State Of Madhya Pradesh on 7 February, 2025

Bench: Sanjay Dwivedi

1
WP-24030-2021

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 7th OF FEBRUARY, 2025
WRIT PETITION No.24030 of 2021
SHRI JITENDRA NARAYAN PANDEY

Versus
STATE OF MADHYA PRADESH AND OTHERS
................................................................................................................................................
Appearance :
Shri Brian D'silva - Senior Advocate with Shri Abhishek Dilraj - Advocate for
the petitioner.
Shri K.V.S. Sunil Rao - Panel Lawyer for respondent No.1/State.
Shri Pankaj Dubey - Advocate for respondent Nos.2 and 3.
Shri Rahul Mishra - Advocate for respondent No.4.
Shri Amit Chaturvedi - Advocate for respondent No.5.
................................................................................................................................................
Reserved on : 23.01.2025
Pronounced on : 07.02.2025
ORDER

Pleadings are complete. The counsel for the parties agreed to argue the matter finally, accordingly, it is finally heard.

2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner has claimed that his superannuation vide order dated 16.10.2014 and the order dated 06.06.2015 be declared bad in law and promotion granted to respondent Nos.4 and 5 be set aside.

It has also been claimed that the order rejecting the representation 2 WP-24030-2021 of the petitioner vide order dated 28.01.2021 be also set aside and it be directed that the case of the petitioner be considered for promotion to the post of Superintending Engineer without considering the adverse ACRs for the years 2011 to 2013 and as such, he be promoted w.e.f. 16.10.2024, the date when respondent No.4 was promoted superseding the petitioner or he be granted promotion w.e.f. 06.06.2015 when respondent No.5, who was junior to him, was promoted after superseding the petitioner and the petitioner be granted all consequential benefits.

Although, this fact has been denied by the respondents and they have contended that the petition suffers from delay and laches and as such, petition can be dismissed because in a matter of promotion, delay plays an important role as in number of cases, the Supreme Court is continuously holding that in a case of promotion claimed belatedly, the High Court should not entertain the petition if there is no sufficient explanation given for challenging the same belatedly and according to the respondents, the petition deserves to be dismissed on the ground of delay and laches.

3. However, considering the submissions made by learned counsel for the parties and on perusal of record, the core question emerges for adjudication is "whether the petition suffers from delay and laches and if not, then the petitioner's claim for granting him promotion with retrospective date when respondent Nos.4 and 5 were promoted, can be considered or not?"

4. To resolve the controversy involved in this case, it is apt to 3 WP-24030-2021 mention the relevant facts of the case, which in nutshell are:-

(4.1) That the petitioner was appointed on the post of Sub Engineer in the year 1984 in the department of respondent No.2 and after considering his record, he was granted promotion to the post of Project Engineer in the year 2005.

(4.2) In the year 2014, two posts of Superintending Engineer were sanctioned and Shri J.P. Pastore (respondent No.4 herein) who was posted as Sub Engineer in the year 1998, later promoted to the post of Project Engineer and further promoted to the post of Superintending Engineer in the year 2014.

(4.3) Likewise, Shri Kishan Widhani (respondent No.5 herein) has also been promoted as Superintending Engineer in the year 2015 whereas he was appointed as Sub Engineer in the year 1988 and promoted to the post of Project Engineer in the year 2012.

(4.4) As per the petitioner, in the year 2014, a DPC was convened for considering the eligible Project Engineers to be promoted to the post of Superintending Engineer. The DPC met on 13.10.2014 for filling up two vacant posts of Superintending Engineer and as per the criteria prescribed in the Rules, cases were to be considered on the basis of merit-cum-seniority and as per the criteria, DPC had to consider the ACRs of preceding five years and 13 marks were fixed as benchmark for eligible candidates.

(4.5) The petitioner was very hopeful to be considered for the said promotional post but he was not promoted despite the fact that 4 WP-24030-2021 he was never communicated any adverse remark and was enjoying good reputation as per his outstanding performance.

(4.6) Although, after coming to know about the fact that he has been superseded by his junior i.e. respondent No.4, he immediately approached his senior officers so as to know why he was not promoted and he came to know that for the ACRs of preceding five years i.e. 2010 to 2014, he secured only 12 marks whereas respondent No.4 secured 15 marks.

(4.7) The next DPC was convened in pursuance of order dated 27.05.2015 to fill up the post of Superintending Engineer from eligible Project Engineers. The petitioner being the senior most, was again considered in the said DPC but was not promoted and respondent No.5 got promoted. The petitioner again inquired about the said fact and he came to know that on the basis of ACRs, he secured only 12 marks whereas respondent No.5 secured 17 marks and therefore, was promoted vide order dated 06.06.2015.

(4.8) As per the petitioner, he was never communicated any of his adverse ACRs more particularly for the years 2010 to 2014 which were taken note of by the DPC and therefore, he in pursuance of the promotion granted to respondent Nos.4 and 5 in the year 2014 and 2015 respectively, has made a representation dated 23.07.2019 stating therein that since he was never communicated his adverse ACRs, therefore, his representation be considered and adverse communication be 5 WP-24030-2021 upgraded and review DPC be convened.

(4.9) A writ petition was also filed by the petitioner i.e. W.P. No.10156 of 2020, which was disposed of vide order dated 27.08.2020 directing the petitioner to file a fresh representation to the respondents and if that is done, the same will be decided by the respondents assigning reason with a speaking order.

(4.10) The fresh representation was submitted by the petitioner on 01.10.2020, which was decided by the respondent/authority vide order dated 28.01.2021 assigning reason therein as to why adverse ACRs were not communicated and it was also assured that in future, the petitioner will be considered with sympathy for promotion to a higher post.

(4.11) The petitioner again requested the respondents vide letter dated 23.07.2021 asking copies of ACRs for the years 2009-2010 to 2019-2020 and when the same were supplied to him then only he came to know that in the ACRs for the year 2010-2011, he was assessed as "d" with a note "Very Good" by the Assessing Officers and it was also approved by respondent No.2. Although respondent No.3 had downgraded it from "d" (Very Good) to "[k" (Good) without assigning any reason.

(4.12) The petitioner thereafter had filed a petition i.e. W.P. No.20704 of 2021 before this Court and after receiving the copy of ACRs through RTI, he had withdrawn that petition with liberty to file a fresh one in case grievance survives.

WP-24030-2021 (4.13) In the backdrop of aforesaid factual matrix, the petitioner is before this Court assailing the orders passed by the respondent/authority.

5. Shri Brian D'silva, learned senior counsel appearing for the petitioner has submitted that as per the settled principle of law, the adverse ACRs, if not communicated, cannot be taken note of at the time of considering the case of promotion by the DPC. He has submitted that in the present case, admittedly adverse ACRs were not communicated to the petitioner and those were coming in way of his promotion and therefore, the proceeding of DPC granting promotion to respondent Nos.4 and 5 deserves to be set aside and review DPC be convened ignoring the ACRs of the petitioner for the years 2010 to 2014 and promotion of respondent Nos.4 and 5 be also set aside.

6. The main contesting respondents i.e. respondent Nos.2 and 3 have filed their reply.

7. Countering the aforesaid arguments of the counsel for the petitioner, Shri Pankaj Dubey, learned counsel appearing for respondent Nos.2 and 3 has submitted that the petitioner suffers from delay and laches, therefore, it is liable to be dismissed on this very ground.

8. As per the respondents, though the petitioner was considered by the DPC but since he failed to qualify the required criteria, therefore, he was not promoted and was superseded in the year 2014 and 2015 and now in a petition of 2021, the petitioner's claim cannot be considered because it is hopelessly barred by time. The petition should have been filed immediately after the order of promotion of respondent Nos.4 and 7 WP-24030-2021 5 and even the first representation according to them, has been filed in the year 2019 and therefore, the explanation given in the column of delay in the petition cannot be considered to be a sufficient cause. The petition therefore, deserves to be dismissed.

9. Respondent Nos.4 and 5 have also filed their reply and submitted that their promotion has been made by the respondents after due consideration of their record and since they fulfilled the criteria, therefore, got promoted. Not only this, but the petitioner was also considered by the respondents but since he failed to achieve the cut-off marks, therefore, was not promoted and as such, after such a long time, their promotion cannot be set aside because the same was validly done following the rules. Ergo, the petition according to them, deserves to be dismissed.

10. Shri D'silva, during the course of arguments has placed reliance upon an order passed by this Court in the first round i.e. W.P. No.10156 of 2020 which got disposed of vide order dated 27.08.2020 directing the petitioner to make a fresh representation and respondents at the same time, were also directed to decide the same by a speaking and reasoned order and according to Shri D'silva, since the High Court has considered the petition and disposed of the same with a direction to file a fresh representation, therefore, at this stage, the delay cannot be taken note of and his petition cannot be dismissed on the ground of delay and laches. He has also contended that the petitioner's representation of 2019 was pending before the authority, not decided and when the Court has directed to file it afresh, a fresh representation was filed which was decided by the impugned order dated 28.01.2021 (Annexure-P/11), not 8 WP-24030-2021 rejecting the representation of the petitioner on the ground of delay, therefore, this petition challenging the said order of the authority not considering the representation in proper manner, the petition on the ground of delay cannot be dismissed.

11. However, I am not convinced with the submissions made by learned counsel for the petitioner. Undisputably, the cause of action to challenge the promotion of respondent Nos.4 and 5 arose when they were junior to the petitioner and promoted after superseding the petitioner in the year 2014 and 2015 respectively. The petitioner first time has made a representation in the year 2019 and since that representation was not decided by the authority, therefore, he filed a petition i.e. W.P. No.10156 of 2020, which was disposed of directing the petitioner to make a fresh representation to the respondents but, merely because the Court has directed the petitioner to file a fresh representation directing the authority to decide the same by a reasoned and speaking order, it does not mean that the delay in raising the cause by the petitioner can now be considered. The order passed by the High Court disposing of the said petition was in the following manner:-

"Under these circumstances, petitioner is directed to submit a fresh representation along with all the relevant documents before respondent No.1 within two weeks from the date of receipt of certified copy of this order. In turn, the said respondent shall decide the same in accordance with law by passing a reasoned and speaking order within a further period of three months' time."

12. The petition was not decided on merit as there was no consideration on merit of the claim and on the first hearing, without the reply of respondent Nos.2 and 3 and even without granting any 9 WP-24030-2021 opportunity to them, the said petition was disposed of, therefore, the stand taken by the petitioner that when High Court on earlier occasion entertained the petition and directed the petitioner to make a fresh representation, then at this stage, the delay cannot be taken note of, is not sustainable.

13. The second writ petition i.e. W.P. No.20704 of 2021 was also withdrawn by the petitioner and that was also at the first hearing not giving any notice to the respondents and this withdrawal was simplicitor with liberty to file afresh if cause of action still survives.

14. In my opinion, it can be assessed that the petitioner was very tactfully filing the petitions before this Court knowing fully well that the same could have been dismissed on the ground of delay and laches, therefore, on the first occasion, he got the petition disposed of and on the second occasion, withdrew the same and again filed a fresh petition, the present one. As such, it is clear that the question of delay in raising cause has not been considered by the Court in earlier rounds of litigation and therefore, if that objection is being raised by the respondents, it is the duty of the Court to consider it whether the petition suffers from delay and laches or not.

15. Although Shri D'silva has relied upon the judgments of the Supreme Court reported in (2008) 8 SCC 725 (Dev Dutt Vs. Union of India & Others), (2009) 16 SCC 146 (Abhijit Ghosh Dastidar Vs. Union of India & Others) and also upon an order passed by this Court in W.P. No.30909 of 2023 (Mrs. Veena Jain Vs. The State of Madhya Pradesh & Others), but in all those cases, the question of delay has not been considered and the legal position is that the Court has considered 10 WP-24030-2021 the cases in which the DPC considered the ACRs which were not communicated but found adverse.

16. There is no dispute with regard to legal aspect as has been relied upon by the counsel for the petitioner and the judgments cited by him dealing with the said legal aspect, but here in this case, the question is as to whether the petition filed by the petitioner raising his grievance suffers from delay and laches and explanation given by the petitioner is sufficient or not.

17. The counsel for the respondents have placed reliance upon a decision reported in (1975) 1 SCC 152 (P.S. Sadasivaswamy Vs. State of Tamil Nadu) in which the Supreme Court has dismissed the writ petition filed under Article 226 of the Constitution of India on the ground of delay and laches holding as under:-

"The appellant failed to come to the Court on three opportunities when he could have. A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion and the High Court can refuse to exercise its extraordinary powers under Article 226 in the case of persons who do not approach expeditiously for relief and put forward stale claim and try to unsettle settled matters."

18. They have also placed reliance upon an order dated 24.08.2023 passed by this Court in Writ Petition No.23739 of 2022 (Anil Kumar Sharma Vs. The State of Madhya Pradesh and others), in which, the High Court has observed as under:-

"4. By this petition the petitioner has claimed promotion to the post of Assistant Sub Inspector w.e.f. 1.10.2015 whereas this petition has been filed on 17.10.2022, i.e. after seven years. It is submitted by counsel for the 11 WP-24030-2021 petitioner that since the petitioner is making successive representations, therefore, there is no delay in filing this petition.

10. Thus, it is clear that successive representations do not give rise to a new cause of action. Furthermore, by this petition the petitioner has challenged the order dated 1.10.2015 by which certain persons including Rewaram Gaikwad were granted promotion. Much water has flown under the bridge. In clause 4 of the writ petition, the petitioner has merely stated that since cause of action leading to this petition is constant in nature, therefore, there is no delay. However, this Court is of the considered opinion that delayed challenge of supersession is a fatal cause. In the meanwhile, the petitioner has allowed lot of things to take place.

11. The Supreme Court in the case of Karnataka Power Corpon. Ltd. Vs. K. Thangappan reported in (2006) 4 SCC 322 has held as under :

6. 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 under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary 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. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports.

Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Shri Balwant Regular Motor Service. Sir Barnes had stated:

"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 12 WP-24030-2021 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 limitation, 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 it relates to the remedy."

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution- makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal Jaiswal 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 satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the 13 WP-24030-2021 effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that 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."

19. Reliance has also been placed upon an order dated 17.10.2022 passed by the Gwalior Bench of this Court in Writ Petition No.22660 of 2022 (Raspati Ojha and another Vs. The State of Madhya Pradesh and others), in which, the High Court has observed as under:-

".........Thus, it is held that in case of promotion, the delay and laches assumes importance. If a person was sitting over his/her right, thereby allowing the situation to change drastically, then he has to suffer for his own lethargy. A person may feel aggrieved that the similarly situated person has been granted promotion, but then, the person who was sleeping over his right, is responsible for burning his heart. Delay defeats equity. Further more, merely because a vigilant employee was agitating his cause and got the relief, then the judgment passed in the case of vigilant employee would not amount to giving rise to any cause of action in favor of those persons who were sleeping over their rights. Furthermore, repeated representations do not extend the period of limitation, and even if, the Court has directed for deciding the representation, still an old and stale case cannot be reopened, because a decision on the delayed representation would not give rise to any fresh cause of action."

20. This Court also vide order dated 17.10.2024 passed in Writ Petition No.8045 of 2016 (C.B.M. Tiwari Vs. The Chairman, Coal India Ltd. And others) dealing with the importance of limitation in a case of promotion, has observed as under:-

"10. As already mentioned hereinabove, none of 14 WP-24030-2021 the juniors promoted by the respondents ignoring the petitioner has been impleaded as a party and even after giving opportunities to the learned counsel for the petitioner being in representative capacity to implead any of the junior who superseded the petitioner, he refused to do so. As such, now this Court has to see whether in a case of supersession when respondents are denying that no junior of the petitioner has been promoted and no relief can be granted without impleading any of the juniors superseded the petitioner, relief can be granted or not and petition can be maintained or not, because it suffers from non-joinder of the necessary party. In this regard, learned counsel for the respondents has placed reliance upon a decision reported in Vijay Kumar Kaul (supra) in which the Supreme Court has considered the claim of promotion on the ground that juniors have been promoted. The Supreme Court has also taken note of the aspect of delay. The Supreme Court has also observed that in absence of any junior promoted ignoring the claim of the petitioner, the petition cannot be maintained and that suffers from non-joinder of the parties. The Supreme Court has observed as under:

"36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.

37. In this context we may refer with profit to the decision in Indu Shekhar Singh v. State of U.P. [(2006) 8 SCC 129 : 2006 SCC (L&S) 1916 : AIR 2006 SC 2432] wherein it has been held thus : (SCC p. 151, para 56) "56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority."

WP-24030-2021

38. In Public Service Commission v. Mamta Bisht [(2010) 12 SCC 204 : (2011) 1 SCC (L&S) 208 :

AIR 2010 SC 2613] this Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed observed thus : (SCC pp. 207-08, paras 9-10) "9. ... in Udit Narain Singh Malpaharia v.

Board of Revenue [AIR 1963 SC 786] , wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'CPC') provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat [AIR 1965 SC 1153] , Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [(1974) 2 SCC 706 : AIR 1974 SC 2105] and Sarguja Transport Service v. STAT [(1987) 1 SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC 88] .)

10. In Prabodh Verma v. State of U.P. [(1984) 4 SCC 251 : 1984 SCC (L&S) 704 : AIR 1985 SC 167] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119 : AIR 2008 SC Supp 824] , it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties."

39. From the aforesaid enunciation of law there cannot be any trace of doubt that an affected party has to be impleaded so that the doctrine of audi alteram partem is not put into any hazard."

11. The Supreme Court in the above case also 16 WP-24030-2021 considered the aspect of claiming relief of seniority and promotion at a belated stage and observed that the claim of promotion can be raised at an earliest opportunity or within a reasonable time. The belated approach is impermissible because in the meantime interest of third parties gets ripened and any interference after enormous delay creates anarchy. The Supreme Court has also observed that it becomes an obligation to take into consideration the balance of justice or injustice while entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time. Not only this but the Supreme Court has further observed that making continuous representations and consuming time to see the result of those representations is unwarranted and petition can be dismissed on the ground of delay and laches. The Supreme Court observed with regard to delay as under:-

"22. As far as Appellant 4 is concerned, we really see no justifiable reason on his part to join the other appellants when he had acceded to the first judgment passed in his favour to a limited extent by the Tribunal. This was an ambitious effort but it is to be borne in mind that all ambitions are neither praiseworthy nor have the sanction of law. Be that as it may, they approached the Tribunal sometime only in 2004. The only justification given for the delay was that they had been making representations and when the said benefit was declined by communication dated 31-7-2004, they moved the Tribunal. The learned Senior Counsel for the appellants fairly stated that as the doctrine of parity gets attracted, they may only be conferred the benefit of seniority so that their promotions are not affected.

23. It is necessary to keep in mind that a claim for seniority is to be put forth within a reasonable period of time. In this context, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 17 WP-24030-2021 152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271] wherein a two-Judge Bench has held thus : (SCC p. 154, para 2) "2. ... 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 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."

24. In Karnataka Power Corpn. Ltd. v. K. Thangappan [(2006) 4 SCC 322 : 2006 SCC (L&S) 791 : AIR 2006 SC 1581] this Court had held thus that : (SCC p. 325, para 6) "6. 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 under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary 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. Even where fundamental right is involved the matter is still within the discretion of the court as pointed out in Durga Prashad v. Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has to be exercised judicially and reasonably."

25. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168 :

AIR 2009 SC 571] this Court has opined that : (SCC p. 174, para 26)

"26. ... One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a writ 18 WP-24030-2021 is an adequate ground for refusing a writ. The principle is that the courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum."

26. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy.

27. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time."

12.The Supreme Court in case of A.J. Fernandis (supra) has considered the aspect of delay in a matter of promotion and observed as under:-

"14. Even otherwise, it is to be noted that the appellant got promoted to the post of Ticket Collector on 28-5-1983. He was thereafter promoted as a Senior Ticket Collector on 25-9- 1986. The appellant was then promoted as a Train Ticket Examiner on 25-5-1987. The 3rd respondent chose to challenge the promotion of the appellant as a Ticket Collector only on 11- 12-1987, i.e., after a period of 4 years. On the ground of delay and laches also the application of the 3rd respondent should have been dismissed."

13.In case of Balram Prasad Shukla, the High Court has also considered the claim of promotion on the ground of delay and laches and observed as under:-

WP-24030-2021 "7. It be seen that the petitioner was promoted on the post of Accountant on ad-

hoc basis on 28-2-1980 but the promotion was subject to the approval of the DPC as it is clear on bare perusal of Annexure-I dated 28-2-1980. Thus, the confirmation of the petitioner to the post of Accountant would be only after the approval of the DPC. The DPC was convened in the year 1981 and the petitioner was not found fit as a result of which vide order dated 7-7-1981 the department passed impugned order Annexure-H reverting the petitioner to his original post of first grade clerk. It be seen that the promotion which took place on 7-7- 1981 was never challenged by the petitioner for near about nine years and by this petition which was filed on 12-2-1990 the petitioner is seeking promotion w.e.f. 7-7-1981. In the case of P.S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152 : AIR 1974 SC 2271 the Apex Court upheld the decision of Madras High Court dismissing the writ petition of the petitioner on the ground of laches in regard to promotion which was sought after 14 years. In that case the Supreme Court held that if a person is aggrieved by an order of promotion, promoting a junior over his head he should approach the Court atleast within six months or at the most a year of such promotion. The same view has been reiterated by the Apex Court in a later decision in the case of A.J. Fernandis v. Divisional Manager, South Central Railway, (2001) 1 SCC 240 in which the Apex Court held that the promotion of another employee cannot be changed after a period of four long years. Since the petitioner is challenging the order of promotion after near about nine years, the view of this Court is that on the basis of the decision of P.S. Sadasivaswamy and A.J. Fernandis (supra), the petitioner is not entitled for the relief."

21. In view of the above, it is clear that the petition suffers from delay 20 WP-24030-2021 and laches. Merely because a representation was made by the petitioner in the year 2019, though not decided by the authority on the ground of delay, does not mean that the Court at the time of entertaining the petition, cannot consider the question of delay.

22. Dealing with the similar situation, the Supreme Court in a case reported in (2008) 10 SCC 115 (C. Jacob Vs. Director of Geology and mining and another) has observed as under:-

"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligations of parties. Little do they realise the consequences of such a direction to "consider". If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex- employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

10. 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 21 WP-24030-2021 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.

11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of "acknowledgement of a jural relationship" to give rise to a fresh cause of action.

12. When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice."

23. Similarly, the High Court vide order dated 06.03.2024 passed in Writ Petition No.7106 of 2020 (Sanjay Dave Vs. Union of India and others) has considered the fact whether filing repeated representations can give a fresh cause of action and delay can be ignored or not and observed as under:-

"4. Before entering into the merits of the case, this Court would like to deal with the preliminary objections with regard to delay and latches. The crux of the matter is that the service of the petitioner was terminated in November, 2002 and the petitioner has approached this Court after 18 long years. It is well established principle of law that delay defeats equity."

WP-24030-2021

5. The Supreme Court in the case of Karnataka Power Corpon. Ltd. Vs. K. Thangappan reported in (2006) 4 SCC 322 has held as under :

6. 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 under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary 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. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably.

"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 limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances 23 WP-24030-2021 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 it relates to the remedy."

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal Jaiswal 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 satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and 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. It was pointed out that 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 24 WP-24030-2021 whether or not to exercise such jurisdiction. The Supreme Court in the case of M.P. Ram Mohan Raja Vs. State of T.N. Reported in (2007) 9 SCC 78 has held as under :

11. So far as the question of delay is concerned, no hard-andfast rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8-10-1996 an order was passed by the Collector in pursuance of the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease.

The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit.

The Supreme Court in the case of Shiv Dass Vs. Union of India reported in (2007) 9 SCC 274 has held as under :

6. Normally, in the case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India. In an appropriate case the High Court may refuse to invoke its extraordinary 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. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v.

Prosper Armstrong Hurd, PC at p. 239 was 25 WP-24030-2021 approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v.

Balwant Regular Motor Service. Sir Barnes had stated:

"Now the doctrine of laches in courts of equity is not an arbitrary or 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, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, 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."

8. It was stated in State of M.P. v. Nandlal Jaiswal 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 satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may 26 WP-24030-2021 have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that 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 the case of Nadia Distt. Primary School Council Vs. Sristidhar Biswar reported in (2007) 12 SCC 779 has held as under :

11. In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision in Dibakar Pal. Such persons should not be given any benefit by the court when they allowed more than nine years to elapse. Delay is very significant in matters of granting relief and courts cannot come to the rescue of the persons who are not vigilant of their rights.

Therefore, the view taken by the High Court condoning the delay of nine years cannot be countenanced.

The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant Singh reported in (2006) 11 SCC 464 has held as under :

12. The statement of law has also been summarised in Halsbury's Laws of England, para 911, p. 395 as follows: "In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and (ii) any change of positi on that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the 27 WP-24030-2021 remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."

The Supreme Court in the case of Jagdish Lal Vs. State of Haryana reported in (1997) 6 SCC 538 has held as under :

18. That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution.

The Supreme Court in the case of NDMC Vs. Pan Singh reported in (2007) 9 SCC 278 has held as under :

16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity.

They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut- off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal Nigam v. Jaswant Singh and Karnataka Power Corpn. Ltd. v. K. Thangappan.)

17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India 28 WP-24030-2021 and M.R. Gupta v. Union of India.)

18. In Shiv Dass v. Union of India this Court held: (SCC p.277, paras 9-10) "9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. There is a limit to the time which can be considered reasonable for making overnment had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik.).

10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."

19. We, therefore, are of the opinion that it was not a fit case where the High Court should have exercised its discretionary jurisdiction in favour of the respondents herein.

The Supreme Court in the case of State of Orissa v. Pyarimohan Amantaray reported in (1977) 3 SCC 396 has held as under :

6. It would thus appear that there is justification for the argument of the Solicitor-General that even though a cause of action arose to the petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he 29 WP-24030-2021 allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the Indian Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India.

The Supreme Court in the case of State of Orissa v. Arun Kumar Patnaik reported in (1976) 3 SCC 579 has held as under :

14. It is unnecessary to deal at length with the State's contention that the writ petitions were filed in the High Court after a long delay and that the writ petitioners are guilty of laches. We have no doubt that Patnaik and Mishra brought to the court a grievance too stale to merit redress.

Krishna Moorthy's appointment was gazetted on March 14, 1962 and it is incredible that his service-horoscope was not known to his possible competitors. On November 15, 1968 they were all confirmed as Assistant Engineers by a common gazette notification and that notification showed Krishna Moorthy's confirmation as of February 27, 1961 and that of the other two as of May 2, 1962. And yet till May 29, 1973 when 30 WP-24030-2021 the writ petitions were filed, the petitioners did nothing except to file a representation to the Government on June 19, 1970 and a memorial to the Governor on April 16, 1973. The High Court made light of this long and inexplicable delay with a casual remark that the contention was "without any force". It overlooked that in June, 1974 it was setting aside an appointment dated March, 1962 of a person who had in the meanwhile risen to the rank of a Superintending Engineer. Those 12 long years were as if writ in water. We cannot but express our grave concern that an extraordinary jurisdiction should have been exercised in such an abject disregard of consequences and in favour of persons who were unmindful of their so-called rights for many long years.

The Supreme Court in the case of BSNL v.

Ghanshyam Dass reported in (2011) 4 SCC 374 has held as under :

26. On the other hand, where only the affected parties approach the court and relief is given to those parties, the fence-sitters who did not approach the court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others.

27. In Jagdish Lal v. State of Haryana, the appellants who were general candidates belatedly challenged the promotion of Scheduled Caste and Scheduled Tribe candidates on the basis of the decisions in Ajit Singh Januja v. State of Punjab, Union of India v. Virpal Singh Chauhan and R.K. Sabharwal v. State of Punjab and this Court refused to grant the relief saying: (Jagdish Lal case, SCC pp. 562-63, para 18) "18. ... this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution. It is not necessary to reiterate all the catena of precedents in this behalf. Suffice it to state that the appellants kept sleeping over their rights for long and elected to wake up when they had the impetus from Virpal Chauhan and Ajit Singh ratios. But Virpal Chauhan and Sabharwal cases, kept at rest the 31 WP-24030-2021 promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation to all the persons prior to the date of judgment in Sabharwal case which required to be examined in the light of the law laid in Sabharwal case. Thus earlier promotions cannot be reopened. Only those cases arising after that date would be examined in the light of the law laid down in Sabharwal case and Virpal Chauhan case and equally Ajit Singh case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed. In A.B.S. Karamchari Sangh case a Bench of two Judges to which two of us, K. Ramaswamy and G.B. Pattanaik, JJ. were members, had reiterated the above view and it was also held that all the prior promotions are not open to judicial review. In Chander Pal v. State of Haryana a Bench of two Judges consisting of S.C. Agrawal and G.T. Nanavati, JJ. considered the effect of Virpal Chauhan, Ajit Singh, Sabharwal and A.B.S. Karamchari Sangh cases and held that the seniority of those respondents who had already retired or had been promoted to higher posts could not be disturbed. The seniority of the petitioner therein and the respondents who were holding the post in the same level or in the same cadre would be adjusted keeping in view the ratio in Virpal Chauhan and Ajit Singh; but promotion, if any, had been given to any of them during the pendency of this writ petition was directed not to be disturbed."

The Supreme Court in the case of Ghulam Rasool Lone v. State of J&K reported in (2009) 15 SCC 321 has held as under:

22. If at this late juncture the petitioner is directed to be promoted to the post of Sub-

Inspector even above Abdul Rashid Rather, the seniority of those who had been promoted in the meantime or have been directly recruited would be affected. The State would also have to pay the back wages to him which would be a drainage of public funds. Whereas an employee cannot be denied his promotion in terms of the rules, the 32 WP-24030-2021 same cannot be granted out of the way as a result whereof the rights of third parties are affected. The aspect of public interest as also the general administration must, therefore, be kept in mind while granting equitable relief.

23. We understand that there would be a heart burning insofar as the petitioner is concerned, but then he is to thank himself therefor. If those five persons, who were seniors to Hamiddulah Dar filed writ petitions immediately, the High Court might have directed cancellation of his illegal promotion. This Court in Maharaj Krishan Bhatt did not take into consideration all these aspects of the matter and the binding decision of a three-Judge Bench of this Court in Govt. of W.B. v. Tarun K. Roy. The Division Bench of the High Court, therefore, in our opinion was right in opining that it was not necessary for it to follow Maharaj Krishan Bhatt.

The Supreme Court in the case of P.S. Sadasivaswamy v. State of T.N., reported in (1975) 1 SCC 152 has held as under :

"2. ... 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 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."

x x x

10. The Supreme Court in the case of State of Uttaranchal v. Shiv Charan Singh Bhandari reported in (2013) 12 SCC 179 has held as under :

19. From the aforesaid authorities it is clear as 33 WP-24030-2021 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.

****

28. 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.

The Supreme Court in the case of C. Jacob v. Director of Geology and Mining reported in (2008) 10 SCC 115 has held as under :

"10. 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."

The Supreme Court in the case of Union of India v. M.K. Sarkar reported in (2010) 2 SCC 59 has held as under :

"15. 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 34 WP-24030-2021 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.""

(emphasis supplied)

24. In view of aforesaid legal preposition as has been dealt with by the Supreme Court and also by this Court, the explanation given by the petitioner in the column of delay, cannot be considered to be a sufficient cause. Further, the Court is repeatedly saying that delay defeats equity and in a matter of promotion, it is clear that entertaining a petition would amount to unsettle the settled position.

25. Admittedly, the petitioner did not approach the Court in time and the promotion made in favour of respondent Nos.4 and 5 in the years 2014 and 2015 respectively, cannot be questioned in the year 2021, therefore, the petition apparently suffers from delay and laches.

26. Ex consequentia, the petition, being devoid of merit, stands dismissed.

(SANJAY DWIVEDI) JUDGE ac/-

ANIL CHOUDHARY 2025.02.07 17:57:50 +05'30'

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