Andhra HC (Pre-Telangana)
Mohd. Ameeruddin And Ors. vs Osmania University, Hyderabad on 16 November, 2001
Equivalent citations: 2002(1)ALD675, 2002(2)ALT558
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. Whether delay and laches on the part of the petitioners would debar them from obtaining an equitable relief under Article 226 of the Constitution of India, although a right in relation thereto arises from the judgment of the Apex Court, is the question involved in these writ petitions.
2. The petitioners herein are the retired non-teaching staff of the respondent-Osmania University. The conditions of service of the non-teaching staff of the University are identical to those of the employees of the State Government. The State had been issuing various Government Orders from time to time in respect of the University.
3. By reason of G.O. Ms. No. 36, Finance, dated 22-12-1983, the age of superannuation of the employees of the State was reduced from 58 years to 55 years. Pursuant to the said orders, the University by order in Univ. Order No. 915/53/1983/ Admn.II dated 22-2-1983 reduced the age of superannuation of its non-teaching staff also to 55 years from 58 years. The said order was questioned before this Court in WP No. 11524 of 1983, inter alia, praying therein that the age of superannuation of non-teaching staff should be 60 years and not 55 years. The said writ petition was allowed on 27-2-1983 by a learned single Judge of this Court holding that in terms of Section 38 of the University Act and the constitutional guarantee provided under Articles 14 and 16 of the Constitution of India, the salaried officers of the Osmania University are entitled to be continued in service till they attain the age of 60 years.
4. The matter was carried in appeal by the University in WA No. 476 of 1987 arising out of WP No. 5031 of 1983. The said writ appeal was dismissed on 20-4-1989. The University filed an application for grant of special leave before the Supreme Court which was marked as SLP Nos. 14888-89 of 1989 and by order dated 7-2-1990 leave was granted, but the Apex Court refused to grant interim stay.
5. Having regard to the decision of this Court in WP No. 11524 of 1983 a Writ Petition was filed by some of the employees who retired at the age of 55 years between 1983 and 1990 being WP No. 11898 of 1990. Following its earlier decision in WA No. 476 of 1987, dated 20-4-1989, this Court allowed the said writ petition by an order dated 29-8-1990, the writ appeal filed there against being WA No. 1113 of 1990 was also dismissed. An application for grant of special leave was filed before the Apex Court. Leave was granted. However, the reinstatement of the employees who were respondents therein was stayed on the assurance by the University that "if the University fails in appeal the employees will be paid salary on the footing that they have worked upto the age of 60 years. The said SLP and SLP Nos. 14888-89 of 1989 were disposed of by the Supreme Court on 14-10-1997. The decision of the Apex court is reported in Osmania University v. V.S. Muthurangam and Ors., 1997 (4) SCALE 416. The Apex Court held that having regard to the recommendations of the UGC when the age of superannuation of the teaching staff has been raised to 60 years, no practical difficulties stood in the way of University in giving effect thereto in relation to non-teaching staff also. We shall advert to the said decision a little later. The University filed a review petition but the same was also dismissed.
6. Thereafter the matter was considered by the University on 25-7-1998 and it was decided as under:
I. To retire hereinafter the Non-Teaching Employees of the University from service on attaining the age of 60 years with consequential benefits treating the age of superannuation as 60 years.
II. To pay consequential benefits like increments, leave salary, pension, etc., to all those Non-Teaching Employees who were continued in service beyond 58 years and either retired on attaining the age of 60 or continuing in service till they complete the age of 60 and then retire.
III. To pay all consequential benefits to the writ petitioners in WP No. 11524/1983 and 11898/1990 who retired at 58 years deeming them to be in service till 60 years.
7. Aggrieved by that part of the order whereby consequential benefits have been directed to be paid only to the petitioners in the aforesaid writ petitions, the petitioners herein have filed these writ petitions, inter alia, seeking the following reliefs:
... to issue an order or direction or a writ more particularly one in the nature of Mandamus directing the respondent-University to pay the petitioners all the arrears of salary for a period of two years from the respective dates of their retirement deeming them to be in service up to their attaining the age of 60 years and all the other retirement benefits accordingly...
8. Mr. Bakshi and Mr. Kulkarni, learned Counsel appearing on behalf of the petitioners would submit that non-implementation of the judgment of the Apex Court in respect of the petitioners herein on the ground that they were not parties to the earlier writ petitions is discriminatory in nature and thus the same should be struck down by this Court. The learned Counsel would contend that the respondent-University being a State within the meaning of Article 12 of the Constitution could not have in view of Article 14 of the Constitution declined to treat the persons similarly situated on equal footing. It was pointed out that the petitioners have approached the Court within a reasonable time after the decision of the Supreme Court was rendered and thus the plea of the respondents to the effect that the petitioners are not entitled to the benefits on the ground of delay and laches cannot be sustained. Reliance in this connection has been placed on the decisions of the apex Court in Doordarshan Cameramen's Welfare Association v. Union of India, , M.S.L. Patil v. State of Maharashtra, and K. Jagdish and Ors. v. Singareni Collieries Company Limited, .
9. Mr. Ramakantha Reddy, learned Counsel appearing on behalf of the petitioners (sic respondents) would submit that the financial burden of the University is being met by the State and if the writ petitions are to be allowed, a very huge sum would be required to be paid by the University. Such a financial implication of the University must be met by the State. The State, according to the learned Counsel for the petitioners, (sic respondents) in a situation of this nature, was a necessary party. The learned Counsel would contend that the earliest writ petition being WP No. 11524 of 1983 was allowed as far back as in 1987. The petitioners did not claim their right at that point of time. Pursuant to the reduction of the age many teachers had retired from service 15 to 18 years back. They voluntarily filed pension papers and accepted the amount of pension and drawing the same without any demur whatsoever. As they did not work the principle of no work no pay would apply in their case. They did not even made any representation to the University and thus the University had no occasion to consider their claim. The learned Counsel would contend that even no explanation has been offered for the delay in filing the writ petition. He would urge that no Public Law remedy being involved, the same cannot be enforced. In support of the said contention, the learned Counsel has relied upon the decisions of the apex Court in Moon Mills v. Industrial Court, Bombay, AIR 1967 SC 1450, M.S.R.T. Corporation v. B.R.M. Service, , A. Hamsaveni v. State of Tamil Nadu, , H.P. Road Transport Corporation v. Balwant Singh, and P.K. Ramachandran v. State of Kerala and Anr., .
10. The petitioners in all these writ petitions had retired from service on attaining the age of 58 years between 1985 to 1996. The decision of the Apex Court in Osmania University v. V.S. Muthurangam (supra) was rendered on 8-7-1997. It is beyond any cavil of doubt that a judicial order of the Apex Court laying down a general principle of law should be applied on equal footing in respect of all those who are entitled to the benefit irrespective of the fact that as to whether they are parties to the order or not. But the said rule is not absolute in terms. Delay, as is well known, defeats equity. This Court while exercising its jurisdiction under Article 226, exercises its equity jurisdiction also. It may, in appropriate cases, thus, refuse to grant the relief to a party in its discretion although otherwise the persons are entitled thereto. Conduct of a party also plays a vital role in granting discretionary relief. S.A. De Smith in his treatise "Judicial Review of Administrative Action" at Chapter XX (page 805 at 20.001) stated the law thus:
.... Discretion can be exercised in one way at the leave stage and in a different way after the hearing, when deciding whether any remedy should be granted. Thus the fact that an issue has been decided in the applicant's favour does not mean that it will not be decided against him at a later stage. A good example of this is provided by cases in which the applicant has been guilty of delay. (See R. v. Dairy Produce Quota Tribunal, ex. P.Caswell - (1990) 2 A.C. 738). Even though the court has granted leave to apply for judicial review notwithstanding the delay which has occurred this does not avoid the Court having to reconsider the question of delay when deciding whether to grant a remedy after the hearing.
11. In MOON MILLS (supra) it has been held:
... It is true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his night as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. ...
12. It is well settled principle of law that no person can be granted relief who had wilfully slept over the matter for a long lime. In A. HAMSAVENI (supra) the apex Court observed thus:
... Sleeping over the rights, if there were any, with eyes open does not cure laches.
13. In State of Maharashtra v. Digambar, , the apex Court held:
How a person who alleges against the State of deprivation of his a legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a Welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the Welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other "person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief.
14. In Principal, Engineering College v. S. Mukherjee, 1998 1 CHN 471, it has been held:
"... The petitioner furthermore, filed the writ application after a long time although the impugned order as contained in annexure 'D' to the writ application passed as aforesaid on 19-12-1988. It is now well known that those who sleep over their right could not be granted any equitable relief. Reference in this connection may be made to AIR 1997 SC 2249......
(Also see State of Maharashtra v. Additional Commissioner and Ors., (1994) Supp 2 SCC 568 and High Court of M.P. v. Mahesh Prakash, AIR 1994 SC 2559.)
15. In P.K. RAMACHANDRAN (supra) the apex Court observed:
Law of Limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds....
16. In Ratan Chandra Sammanta Sanat Pakhira V. Union of India, AIR 1993 SC 2276, dealing with the cases of retrenched railway employees the Apex Court held that delay disentitles them both of remedy and right. That was a case where a scheme was framed for employing retrenched casual labourers pursuant to the orders of the Apex Court. The petitioners before the Apex Court were retrenched between 1975 and 1978. The scheme was prepared in 1987 and they made representation in 1990 for re-employment in accordance with the scheme. The Apex Court considered the issue in the perspective whether they had lost their right, if any due to delay. It was observed:
............ A writ is issued by this Court in favour of a person who has some right, Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well. From the date of retrenchment if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of the petitioners we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed.
17. In Patel Motibhai Naranbhai v. Dmubhai Motibhai Patel, the Apex Court held:
........ The Court should not come to the aid of a party where there has been unwarrantable delay in seeking the statutory remedy. Any remedy must be sought with reasonable promptitude having regard to the circumstances.
18. In the aforementioned backdrop, the decisions cited by the learned counsel appearing on behalf of the petitioners may be noticed. In M.S.L. PATIL (supra) the apex Court while dealing with the quota rule -- direct recruits and promotees --observed thus:
It is undoubted that they were not parties to the earlier petition out this Court has laid down the general principle of law and, therefore, whether or not they are parties to the earlier proceedings the general principle of law stands applicable to every person irrespective of the fact whether he is a party to the earlier order or not. It is not in dispute that there is a ratio prescribed for the direct recruits and the promotees namely, 1:1.
19. The fact situation in the above case was absolutely different. The dispute relates to the seniority between direct recruits and promotees with reference to quota rule in the category of Conservator of Forests. The petitioner therein contended that since he was not a party to the earlier proceedings before the Supreme Court, the decision is violative of the principles of natural justice. In that context, the Apex Court held that a general principle of law laid down by the Apex Court is applicable to every person including those who were not parties to the order. There cannot be any dispute about the said proposition of law. But, in our view, the same has to be applied having regard to the facts and circumstances of each case. In the instant case, the petitioners have approached this Court after a lapse of several years. Though they are similarly situated, the said aspect has to be taken into account while granting the relief prayed for.
20. In Doordarshan Cameramen's Welfare Assn. v. Union of India, the Apex Court was dealing with the parity of pay scales of some of the technical staff working in Doordarshan Kendars like Cameramen, Light Assistants, Staff Artists, Sound Recordists on par with their counterparts working in Films Division. The earlier writ petitions filed by some of the Doordarshan employees in 1978, 1979 and 1986 were disposed of by the Apex Court on 26-8-1986 granting parity of pay scales to them an par with the employees working in Films Division. However, such benefit was not extended to some of the employees though they belong to the same categories and similarly situated. Initially they filed Contempt Case, but later with the permission of the Court they filed fresh writ petition under Article 32 of the Constitution before the Supreme Court. In the facts and circumstances obtaining therein, the Apex Court held that they are entitled for similar directions for grant of the pay scales.
21. The issue involved before us is not a case of extension of pay scales. The petitioners herein had already retired from service at the age of 58 years without making any representation even though they very well know that the matter has been pending before the Supreme Court and they are drawing the pension from the last 4 to 18 years. Further, even when WP No. 11898 of 1998 filed by some of the employees was allowed by this Court following the earlier judgment in WP No. 11524 of 1983, the petitioners did not make any representation and retired from service without any protest. Under these circumstances, can the persons be said to be entitled to claim the benefit of the Judgment of the Supreme Court though they are similarly situated? A general principle of law laid down by the Apex Court in a matter can be extended to similarly situated persons when all things are equal. As already noticed herein before, in the earlier writ petitions the petitioners therein were either made to retire from service by operation of the orders of the University or they were working in service at the time they filed the writ petitions. Herein, the petitioners retired from service between 1985 and 1996 without any protest and they filed the present writ petitions in 1998, 1999 and 2000 after the Apex Court pronounced the judgment. In these circumstances can it be said that there was no delay or laches on their part in approaching this Court? The answer must be rendered in the negative.
22. The decision of this Court in K. JAGADISH case (supra) also relates to equal pay for equal work. In view of the peculiar facts and circumstances of the cases herein, we are of the view that the said decision has no application.
23. The persons who approached this Court after a long lapse of time despite the decision of this Court rendered in 1987 though their case is covered by the decision of the Apex Court, may, however, form a separate and distinct class. In view of the decisions of the Apex court referred to above, in our view, the benefit of the Judgment of the Apex Court cannot be made applicable to those who had approached this Court after long delay. We are, therefore, of the opinion that on the ground of laches alone, petitioners are not entitled to any relief.
24. It may be true that the concept of equality before law and equal opportunity of law as adumbrated in Article 14 of the Constitution of India may be held to be applicable even in relation to the decisions of the higher Courts. The State may also be under an obligation to treat all the litigants similarly situated equally. But, it would depend upon the facts and circumstances of each case. Where a party has lost his right due to delay, the Court should not come to his aid. It is one thing to say that a person has a right, but is another thing to say that as to whether having regard to his conduct the Court of equality shall grant relief. In a case of delay and Teaches, the Court, in appropriate cases, may, decline to grant such relief.
25. We may refer to Prabhakar Rao v. State of A.P., , wherein the age of superannuation of the employees of the State was reduced from 58 to 55 years with effect from 28-2-1983 but the State soon discovered that it has committed a mistake and rectified the same by restoring the age of superannuation by 23-8-1984. The writ petition filed challenging the reduction of age was dismisses. When the age of superannuation was restored. The same was given only prospective effect. The employees who had retired consequent on the reduction of age were not given the benefit of reinstatement. The matter was carried before the Supreme Court. The Apex Court held that the classification made by the State Government while restoring the age of superannuation is arbitrary and violative of Article 14 of the Constitution of India. The Apex Court held:
....We must further remember, quite apart from any question of retrospectively, that, unlike in the United Kingdom here in India we have a written Constitution which confers Justiciable fundamental rights and so the very refusal to make an Act retrospective or the non-application of the Act with reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non-retroactivity or non-application Clause, as offending the fundamental right to equality before the law and the equal protection of the laws. That is the situation that we have here.
26. In the circumstances obtaining in the aforesaid case, the Apex Court directed that persons retired between 28-2-1983 and 23-8-1984 shall be reinstated in service provided they could not be completing the age of 58 years on or before 31-10-1985. It was further directed that those could not be reinducted shall be entitled to be paid compensation equal to the total emoluments which they would have received, had they been in service until they attained age of 58 years less any amount already paid. The Apex Court also gave certain other directions. The Apex Court in the facts and circumstances of the said case issued the above directions. Here it is not a case of restoration of 58 years. The non-teaching staff of the University are claiming parity of age of superannuation on par with the teaching staff of the University. The Apex Court has decided that issue only in 1997. It was not a case where the petitioners were made to retire at the age of 55 years. All the petitioners herein retired on attaining the age of 58 years only and before they retire they didn't claim that they are entitled to be continued till they attain the age of 60 years on par with teaching staff of the University. Therefore, the benefit of judgment of the Apex Court would be applicable only to those persons who had approached the Court in the year 1983 and to those who approached in 1990. There may not be any irrational classification or arbitrariness resulting out of such prospectiveness of the Judgment of the Supreme Court. The decision of the Supreme Court in PRABHAKAR RAO's case, therefore, cannot have any application in the facts and circumstances of this case. The petitioners have simply kept quite and having found that the Supreme Court rendered a judgment that the age of superannuation of non-teaching staff should be on par with teaching staff, they approached this Court for grant of arrears of salary and other benefits. In the facts and circumstances obtaining herein, it cannot be said that there was any irrational classification. In Prabhakar Rao's case, the employees were retired on account of the decision of Government in reducing the age of retirement. Here it is not a case the petitioners were made to retire on account of any order reducing the reduction of age. What they are claiming is that they are entitled to be continued till they attain the age of 60 years on par with teaching staff. Such a benefit was granted by the Apex Court on the application of some of the employees who filed the writ petitions in 1983. In these circumstances, delay and laches certainly play an important role in the matters before us.
27. We may notice that recently in R. Bhima Nayak v. Government of A.P. unreported judgment of the Division Bench in WP No. 10137 of 1999 disposed of on 18-08-2001, this Court following the decision in HAMSAVENI declined to grant appointment of the petitioner therein as Deputy Collector.
28. In the result, the writ petitions must fail and they are accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.