Punjab-Haryana High Court
Chhotu Ram vs State Of Haryana & Ors on 6 January, 2015
Author: Rajesh Bindal
Bench: Rajesh Bindal
VARINDER SINGH
2015.01.20 10:33
CWP No. 80 of 2015 (1) I attest to the accuracy and integrity
of this document
Punjab & Haryana High Court at
Chandigarh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 80 of 2015 (O&M)
Date of decision : 6.1.2015
Chhotu Ram .. Petitioner
versus
State of Haryana and others .. Respondents
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. S. N. Yadav, Advocate, for the petitioner.
Rajesh Bindal, J.
The prayer in the present petition is for quashing of order dated 11.2.2014 (Annexure P-9) vide which the petitioner was not granted the benefit of 3rd ACP on the ground that he does not fulfill the conditions laid down in the instructions and for issuance of a direction to grant the benefit of 3rd ACP with effect from 1.1.2006 with all consequential benefits.
The petitioner was appointed as Multipurpose Health Worker (Male) on 30.5.1974. As the ACR for the year 2005-06 was recorded as average, he submitted representation on 13.3.2007, but no action has been taken on his representation till date. He was granted 1st and 2nd ACP, but was not granted 3rd ACP and increment, which was due on 1.1.2006. He retired on attaining the age of superannuation on 31.7.2008. Thereafter, also he sent representations on 5.8.2011, 21.11.2011 and 10.1.2012. As no response was received by the petitioner, he got served a legal notice on 19.9.2013. In response to the legal notice, the respondents replied vide order dated 11.2.2014 (Annexure P-9) that as the ACR of the petitioner was not upto the mark from 1.1.2008 till the date of retirement, hence, he was not entitled to 3rd ACP.
Learned counsel for the petitioner submitted that the petitioner has been punished without any reason by not granting the benefit of 3rd ACP. It is a recurring cause of action, hence, no delay in filing of petition. No adverse remarks were ever conveyed.
VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (2) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh After hearing learned counsel for the petitioner, I do not find any reason to interfere with the impugned order on the ground of delay and laches only. The petitioner retired from service on 31.7.2008. The present petition was filed in this Court on 5.1.2015 claiming the benefits which allegedly accrued to the petitioner in the year 2006. The same having been filed more than six years after his retirement deserves to be dismissed on account of delay and laches only. Apparently, the petitioner was satisfied at the relevant time and got a legal notice dated 19.9.2013 issued about five years after his retirement. Merely because on a legal notice so served, a fresh letter/ order has been passed by the authorities, the stale claim will not get revived. Reference for the purpose can be made to a judgment of Hon'ble the Supreme Court in State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 629, wherein Hon'ble the Supreme Court, while considering the issue regarding delay and laches and referring to earlier judgments on the issue, opined that repeated representations made will not keep the issues alive. A stale or a dead issue/dispute cannot be got revived even if such a representation has either been decided by the authority or got decided by getting a direction from the court as the issue regarding delay and laches is to be decided with reference to original cause of action and not with reference to any such order passed. Delay and laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India, in a situation of that nature, will not be attracted as it is well known that law leans in favour of those who are alert and vigilant. Even equality has to be claimed at the right juncture and not on expiry of reasonable time. Even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. Such as an order promoting a junior should normally be challenged within a period of six months or at the most in a year of such promotion. Though it is not a strict rule, the courts can always interfere even subsequent thereto, but relief to a person, who allows things to happen and then approach the court and puts forward a stale claim and try to unsettle settled matters, can certainly be refused on account of delay and laches. Any VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (3) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh one who sleeps over his rights is bound to suffer. An employee who sleeps like Rip Van Winkle and gets up from slumber at his own leisure, deserves to be denied the relief on account of delay and laches. Relevant paragraphs from the aforesaid judgment are extracted below:
"13. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the court has expressed thus:-
"Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (4) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh furnish a fresh cause of action or revive a stale or dead claim."
[Emphasis supplied]
14. In Union of India and others v. M. K. Sarkar, (2010) 2 SCC 59, this Court, after referring to C. Jacob (supra) has ruled that when a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a Court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
15. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322, the Court took note of the factual position and laid down that when nearly for two decades the respondent- workmen therein had remained silent mere making of representations could not justify a belated approach.
16. In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396, it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik, (1976) 3 SCC 579.
VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (5) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh
17. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, (2011) 4 SCC 374, a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana, (1977) 6 SCC 538 and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
18. In State of T. N. v. Seshachalam, (2007) 10 SCC 137, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus:-
"... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
19. There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another, (2009) 15 SCC
321.
20. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278, the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (6) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh High Court which had exercised the discretionary jurisdiction.
21. Presently, sitting in a time machine, we may refer to a two- Judge Bench decision in P. S. Sadasivasway v. State of Tamil Nadu, (1975) 1 SCC 152, wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for the relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters.
22. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (7) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court. True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time."
[Emphasis supplied] In Chennai Metropolitan Water Supply and Sewerage Board and others v. T. T. Murali Babu 2014 (4) SCC 108, Hon'ble the Supreme Court opined as under:
"13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others, AIR 1969 SC 329, the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp, (1874) 5 PC 221, which is as follows:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (8) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
14. In State of Mahrashtra v. Digambar, (1995) 4 SCC 683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
15. In State of M. P. and others etc. etc. v. Nandlal Jaiswal and others etc. etc., AIR 1987 SC 251, the Court observed that it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. It has been further stated therein that if there is inordinate delay on the part of the petitioner in VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (9) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of VARINDER SINGH 2015.01.20 10:33 CWP No. 80 of 2015 (10) I attest to the accuracy and integrity of this document Punjab & Haryana High Court at Chandigarh ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons- who compete with `Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
[Emphasis supplied] In Bal Krishan vs State of Punjab and others, 2013(2) RSJ 18, wherein the petitioner, after rendering about 34 years of service, sought re- fixation of his pay from the date he joined service by filing a petition more than three years after his retirement. This court dismissed the writ petition on account of delay and laches only.
Similar view was expressed by this court in CWP No. 13965 of 2010--Tarsem Pal vs Punjab State Power Corporation Ltd. and others, decided on 29.11.2012, CWP No. 3124 of 2011--Harnam Singh v. State of Punjab and others, decided on 10.3.2014, CWP No. 28508 of 2013 Suraj Mal vs The State of Haryana and others, decided on 29.9.2014, CWP No. 21868 of 2014 Sanjay Kumar vs State of Haryana and others decided on 29.10.2014 and CWP No. 9813 of 2012 Krishan Kumar and others vs State of Haryana and others decided on 21.11.2014.
In view of the above authoritative enunciation of law by Hon'ble the Supreme Court and this Court, the present writ petition filed by the petitioner deserves to be dismissed on account of delay and laches only.
For the reasons mentioned above, the writ petition is dismissed.
6.1.2015 ( Rajesh Bindal ) vs Judge