Calcutta High Court (Appellete Side)
Mithi Mukherjee vs State Of West Bengal & Ors on 20 January, 2014
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
W. P. No. 14434 (w) of 2013
Mithi Mukherjee
-vs-
State of West Bengal & Ors.
With
W.P. 14437 (w) of 2013
With
W.P. 14496 (w) of 2013
With
W.P. 14498 (w) of 2013
With
W.P. 14028 (w) of 2013
With
W.P. 14031 (w) of 2013
With
W.P. 14033 (w) of 2013
With
W.P. 14034 (w) of 2013
With
W.P. 14111 (w) of 2013
With
W.P. 14114 (w) of 2013
With
W.P. 14115 (w) of 2013
With
W.P. 15126 (w) of 2013
With
For the petitioners in
w.p. 14434 (w) of 2013 : Mr. Kamlesh Jha
w.p. 14437 (w) of 2013 : Mr. Biswajit Tiwari
w.p. 4496 (w) of 2013
For petitioners in
w.p. 14028 (2) of 2013 : Mr. Hirak Kumar Mitra
w.p. 14115 (w) of 2013 : Mr. Dipak Basu
w.p. 14034 (w) of 2013 : Mr. Kamalesh Jha
w.p. 14033 (w) of 2013 : Ms. Ahana Sikdar
w.p. 14031 (w) of 2013 : Ms. Enakshi Mitra
w.p. 14498 (w) of 2013
w.p. 14111 (w) of 2013
w.p. 14114 (w) of 2013
For petitioners in
w.p. 15126 (w) of 2013 : Mr. Jaydip Kar
: Mr. Suddhasatwa Banerjee
For High Court : Mr. L.K. Gupta
: Mr. Arjun Ray Mukherjee
For State in
w.p. 14434 (w) of 2013 : Mr. Nirmal Kr. Manna
: Ms. Mitli Mukherjee
For State in : Mr. Jaharlal De
: Mr. Shamim Ul Bari
w.p. 14034 (w) of 2013
w.p. 14111 (w) of 2013
w.p. 14114 (w) of 2013
For State in
w.p. 14115 (w) of 2013 : Mr. Sundarananda Pal
: Mr. Ayan Banerjee
Heard On : 18.07.13, 05.09.13, 10.09.13 & 13.12.2013
Judgment on : 20.01.2014
HARISH TANDON, J.:
The most debated issue evoked from the respective stands of the parties relates to maintainability of the writ petition filed belatedly concerning the Recruitment Process Undertaking in the year 2009 for the post of Civil Judge (Junior Division)/(Judicial Magistrate), in West Bengal Judicial Service.
The Supreme Court in case of Malik Mazhar Sultan (3) & another
-vs-. U.P. Public Service Commission & Ors., reported in (2008) 17 SCC 703 passed directions for filling up the vacancies in the cadre of District Judge, Civil Judge (Senior Division) and Civil Judge (Junior Division) by providing the mechanism therefor. The subject matter of the present writ petition relates to the filling up of the vacancies in the cadre of the Civil Judge (Junior Division) by direct recruitment and the manner and the procedure to be followed are aptly quoted for effectual discussion which are as follows:
"D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment Sl No. Description Date
1. Number of vacancies to be notified by 15 January th The High Court.
Vacancies to be calculated including
(a) Existing vacancies.
(b) Future vacancies that may arise within one year due to retirement.
(c) Future vacancies that may arise due to promotion, death or otherwise, say ten per cent of the number of posts.
2. Advertisement inviting applications from 1st February eligible candidates.
3. Last date for receipt of application. 1st March
4. Publication of list of eligible applicants. 2nd April The list may be put on the website.
5. Dispatch/Issue of admit cards to the 2nd to 30th April eligible applicants.
6. Preliminary written examination 15th May objective questions with multiple choice which can be scrutinized by computer.
7. Declaration of result of preliminary written 15th June examination
(a) Result may be put on the website and also published in the Newspaper.
(b) The ratio of 1:10 of the available vacancies to the successful candidates be maintained.
8. Final written examination 15th July Subjective/Narrative
9. Declaration of result of final written 30th August examination
(a) Result may be put on the website and also published in the newspaper.
(b) the ratio of 1:3 of the available vacancies to the successful candidates be maintained.
(c) Dates of interview of the successful candidates may be put on the internet which can be printed by the candidates and no separate intimation of the date of interview need be sent.
10. Viva voce. 1st to 15th Oct
11. Declaration of final select list and communication to the appointing authority 1st November
(a) Result may be put on the website and also published in the newspaper.
(b) select list be published in order of merit and should be double the number of vacancies notified.
12. issue of appointment letter by the competent 1st December authority for all existing vacant posts as on date.
13. Last date for joining. 2nd January of the following year."
In the above referred decision, the Supreme Court clearly and explicitly indicated that the select list prepared for all categories of the Judicial Officer will be valid till the next select list is published. The above noted directions makes imperative on the High Court to notify the number of vacancies which should include the existing vacancies, future vacancies that may arise within one year of the retirement and future vacancies that may arise due to promotion, death or otherwise. The different time schedules are provided for particular act indicated in the said directions for its adherence. By letter dated 13th January, 2009, the Registrar (Judicial Service), High Court, Calcutta, the vacancy in the rank of Civil Judge (Junior Division)/Judicial Magistrate for the year 2009 was communicated to the Secretary to the Government of West Bengal, Junior Division which is set out hereunder:
From: Shri R.S. Dutta, Registrar (Judicial Service) High Court, Appellate Side, Calcutta.
To The Secretary to the Govt. of West Bengal, Judicial Department, Writers' Buildings, Kolkata- 700 001.
Sub: Reporting of vacancies for recruitment in W.B.J.S. in The rank of Civil Judge (Jr. Divn.)/Judicial Magistrate for the year 2009 as per direction of the Hon'ble Supreme Court in Civil Appeal No. 1867 of 2006 (Malik Mazahar Sultan & Anr. Vs. U.P. Service Commission & Ors.) Sir, With reference to above subject, I am directed to report the following vacancies in the rank of Civil Judge (Jr. Divn.)/J. M. for initiation of the process of recruitment as per the schedule in the above quoted judgment.Approved Cadre Strength..... 375
Working Strength (-) 349 (as on 01.01.2009) 26 Vacancies that may arise in 2009 due to Retirement Of W.B.J.s. Officer (+) 26 10% of the total Cadre Strength (-) 37 Total Vacancy 89 Note: In view of the decision of the Supreme Court in the case of Malik Mazahar Sultan & another vs. U.P. Service Commission & others, further 37 officers, being 10 percent of the total cadre strength of civil judge (junior division)/judicial magistrate, should also be shown in the calculation table for the purpose of declaration of vacancy and additional 37 persons should be kept in the panel so that in the event of any death, voluntary retirement and resignation of the existing officers or unwillingness on the part of the selected candidates to join in the service, such vacancy can be filled up from those additional 37 persons.
Yours Faithfully, Sd/-
Registrar (Judicial Service)"
In response to the above, the Secretary-in-Charge, Junior Division, Government of West Bengal requested the Public Service Commission, West Bengal to take steps for filling up 63 vacancies from the results of the West Bengal Judicial Service Examination, 2009. The Public Service Commission reciprocated by making an advertisement notifying the available vacancies as under:
"Vacancies: (a) The number of vacancies arising in 2009-26 (General-19,BC-02,SC-03, ST-01 and PH-01).
(b) The number of vacancies which may arise due to death, voluntary retirement, resignation or unwillingness to join the service by selected candidates- 37 (General-27, BC-03, SC-04, ST -
02 and PH-01.)"
The petitioner herein participated in the examination conducted by the Public Service Commission who by written communication dated 30th November, 2009 informed the Secretary-in-Charge (Junior Division), Government of West Bengal, the select list of 114 qualified candidates.
The Secretary-in-Charge, Junior Division, Government of West Bengal thereafter forwarded the copy of the said written communication dated 30th November, 2009 to the High Court for necessary action. It was specifically indicated in the said communication that the Secretary-in-
Charge (Junior Division), Government of West Bengal, is contemplating to fill up 25 clear vacancies as well as 2 vacancies which arose due to death and resignation of 2 Civil Judge (Junior Division) during the year 2009. Subsequently, a notification was issued by the Secretary-in-
Charge (Junior Division), Government of West Bengal, for appointment of 25 candidates as Civil Judge (Junior Division) in the West Bengal Judicial Service on temporary basis for a period of 36 pending bills verification report in terms of Rule 8 of West Bengal Judicial (Condition of Service), 2004. The Registrar (Judicial Service) High Court, Calcutta wrote a letter dated 27th January, 2010 to the Secretary-in-Charge, (Junior Division) Government of West Bengal to process for appointment in respect of 18 candidates and to keep the remaining 9 candidates in the waiting list for being considered against the vacancies that may arise due to death, voluntary retirement or resignation of the existing officers or unwilling select candidates. The candidates who were kept in waiting list filed a writ petition before this Court which faced dismissal, as they have no right to appointment. The order of dismissal was carried in intra court appeal (APOT No. 260 of 2011) before the Division Bench of this Court. The Division Bench found that apart from 26 clear vacancies and 37 anticipated vacancies as notified by the High Court to the Secretary-
in-Charge, Government of West Bengal, 42 officers were promoted in the year 2009 which were required to be filled up by the candidates selected for the year 2009 in terms of the directions made in Malik Mazhar Sultan's Case. The administrative committee of the High Court acted in a total disregard to the rules to accommodate the ineligible candidates against the clear vacancies by filling up the promotional vacancies from the select list of the previous year in these words:
" It cannot be disputed that the Administrative Committee of the High Court acted contrary to the Rules in order to accommodate the ineligible candidates against clear vacancies and 42 promotional vacancies in the year 2009 which could be filled up only by the recruits of 2009. The learned Advocate General has rightly submitted before us that for the purpose of appointment to the post of Civil Judge (Junior Division) High Court was consulted at every stage right from finalization of the vacancies till the processing of the cases of the candidates selected and recommended by the Public Service Commission for the year 2009 for appointment against the declared clear vacancies.
It is clearly a patent illegality that the select list duly prepared and recommended by the Public Service Commission for filling up the posts which were admittedly vacant at the commencement of the year 2009 and those which fell vacant during the year 2009, disappeared to the utter dismay of the selected candidates and the appellants herein being duly selected and recommended by the Public Service Commission and subsequently, appointed by the prescribed appointing authority namely, the Governor of West Bengal were denied posting orders by the High Court ignoring the fact that the vacant posts available during the year 2009 could not be filled up by the candidates of the previous year."
The Division Bench while allowing an appeal concluded that those candidates who are put in the waiting list should be issued a posting orders against the vacant post available at that moment, if necessary, by creating supernumerary posts. The judgment of the Division Bench was delivered on 12th September, 2011; the said date would be relevant to address the issues as indicated hereinabove. The Calcutta High Court challenged the said order before the Supreme Court of India in a special leave to appeal (Civil) No. 27234 of 2011 which was listed on 27.09.2011. The Supreme Court directed the issuance of the notice and stayed the operation of the judgment of the Division Bench of the High Court. The matter was again posted in the list before the Supreme Court on 11.03.2013 when the High Court principally agreed to accommodate those 9 candidates and issue the posting orders. The matter again appeared on 1st April, 2013 when the High Court informed that those 9 candidates can be accommodated against 31 posts of the Civil Judge (Junior Division) which are already created and vacant and on the basis of the said information, the Supreme Court directed the State of West Bengal to accommodate those 9 candidates against 31 posts of the Civil Judge (Junior Division) without any further delay. Lastly the mater appeared on 18.09.2013 when the Supreme Court disposed of the appeal on the basis of the information that those 9 candidates have already been appointed.
Between 7th May, 2013 and 15th May, 2013, the aforesaid writ petitions are filed by the several candidates who appeared in the said West Bengal Judicial Service Commission, 2009 seeking an issuance of mandamus for appointment to the post of Civil Judge (Junior Division) as well as cancelling and quashing the advertisement dated 1st February, 2009 issued by the Public Service Commission. It is apposite to record the position of the respective writ petitioners in the list prepared by the Public Service Commission which are as follows:
Sl No. Writ Petition Position in Position in
Select List Recommended
List
1. W.P. No. 14434 59
(w) of 2013
2. W.P. No. 14437 61
(w) of 2013
3. W.P. No. 14496 86
(W) of 2013
4. W.P. No. 14114 33
(w) of 2013
5. W.P. No. 14111 34
(w) of 2013
6. W.P. No. 14115 21
(w) of 2013
7. W.P. No. 14028 22
(w) of 2013
8. W.P. No. 14498 16
(w) of 2013
9. W.P. No. 14033 27
(w) of 2013
10. W.P. No. 14034 24
(w) of 2013
11. W.P. No. 14031 18
(w) of 2013
2. W.P. No. 15126 57
(w) of 2013
Mr. Hirak Mitra, the learned Advocate appearing for the writ petitioners except the writ petitioner in W.P. 15126 (W) of 2013 submits that the entire Recruitment Process Undertaken in the year 2009 was contrary to the directions made in Malik Mazhar Sultan (3) & another (supra) which could be deciphered from the findings made in the judgment of the Division Bench of this Court and is, therefore, liable to be quashed and set aside. He strenuously submits that 48 vacancies arose in the year 2009 because of the promotion of the Civil Judge (Junior Division) which can only be filled up from the select list prepared in the examination conducted for the year 2009. He further submits that the diversion of the vacancies which arose in 2009 to the candidates selected in the West Bengal Judicial Examination, 2008 is per se illegal.
He heavily placed reliance upon the judgment of the Division Bench of this Court rendered in A.P.O.T No. 260 of 2011 which is still operating in the field as the Hon'ble Supreme Court has not upset and/or set aside the said judgment. He vehemently submits that the information received under the RTI revealed that there were 96 vacancies as on 31st December, 2009 which could only be filled with the candidates of 2009 select list in terms of the directions passed by the Supreme Court in Malik Mazhar Sultan's case and the decision of the Administrative Committee of the High Court, Calcutta taken on 28th October, 2009 by placing 51 candidates from 2008 panel and giving them a posting at the cost of the legitimate right of the candidates of 2009 is a gross illegality and dehors the directions of the Supreme Court. By placing reliance upon a division bench judgment of this Court rendered in case of Bibhuti Bhusan Roy and another -vs- Narendra Narayan Ghosh & Others reported in AIR 1951 Cal 228, Mr. Mitra contends that if the proceedings are pursued in good faith and there is no fraud or collusion in the proceeding, then the decree or the orders so obtained inures to the benefit of all candidates whose rights are either effected favourably or adversarily. He audaciously submits that if the legal right is not known or have not ripen, the silence or in action to exercise the right cannot deter in the way if an action, after such right is made known and placed reliance upon a chancellery division's judgment delivered in case of Peyman -vs- Lanjani & Others. reported in 1984 (3) ALLER 703 ChD. To the proposition that a writ of quo warranto will lie when the appointment is made contrary to the statutory provisions, he relies upon a judgment of the Supreme Court in case of Rajesh Awasthi
-vs- Nand Lala Faiswal & Others reported in (2013) 1 SCC 501. Mr. Mitra made an alternative submissions that since the candidates are already appointed in the year 2009 and they would be vitally effected if the selection process of 2009 is quashed and set aside, the writ petitioners should be accommodated in the existing vacancies for the year 2013. In continuance of the above submissions, he submits that the Court should not be a silent spectator to an illegality committed by an authorities at the expense of the legal rights of the rival candidates.
Mr. Gupta, the learned Advocate appearing for the High Court submits that the State has committed wrong in not consulting the High Court before the issuance of the appointment letter and such wrong should not be allowed to perpetuate for all time to come. He further submits that doctrine of equality does not enshrine the negative equality as the wrong cannot be allowed to be repeated, by placing reliance upon a judgment of the Supreme Court in case of Union of India & another - vs- International Trading Co. & another reported in (2003) 5 SCC
437. He strenuously argues that the present writ petitions are liable to be dismissed on the ground of delay and latches as the stale and dead claims should be nipped in bud. In support of the aforesaid contentions, he placed reliance upon the judgments of the Apex Court rendered in case of Union of India & others -vs- M.K. Sarkar reported in (2010) 2 SCC 59, Nadia District Primary School Council and Anr. -vs- Sristidhar Biswas & others., reported in (2007) 12 SCC 779, UP Jal Nigam & another -vs- Jaswant Singh & another reported in (2006) 11 SCC 464 and State of Orissa -vs- Sir Pyarimohan Samantaray & others. reported in AIR 1976 SC 2617. Finally he submits several selection processes viz., 2010,2011,2012 have been completed and the selection process for the year 2013 is in process, the writ petitioners cannot claim their appointments against the vacancies which arose in the year 2013 as it would be contrary to the mandate and/or directions of the Supreme Court passed in Malik Mazhar Sultan's Case.
Mr. Manna & Mr. Dey, the learned Advocates representing the State Government in the aforesaid writ petitions adopt the submission made by Mr. Gupta so far as, it relates to the plea of inordinate delay and/or latches in moving the writ petition is concerned. Additionally, it is submitted that the Court exercising Public Law Jurisdiction should not encourage the adjudication of stale claims when third parties right have intervened and placed reliance upon a judgment of the Supreme Court in case of Shiba Shankar Mohapatra & Ors. -vs- State of Orissa & Ors. reported in (2010) 12 SCC 471. Mr. Dey further submits that there is a distinction between the persons who are vigilant and non- vigilant and both cannot be put on the same pedestal. Mr. Dey took further plea that the lifespan of the panel is alive till the next panel is prepared and in view of the fact that the panel of 2009 lapses on the panel prepared for 2010, the writ petitioners cannot claim any right of appointment on the strength of the lapsed panel and placed reliance upon a Division Bench Judgement of this Court in case of The Registrar General, High Court, Calcutta -vs- Minakshi Chakraborty reported in 2013 (02) CLT 212 (HC).
Mr. Jaydip Kar, the learned Advocate appearing for the writ petitioner in W.P. 15126 (W) of 2013 countered the submission of the High Court and the State in submitting that recourse to the plea of limitation by a public authority to defeat the legitimate claim of the citizen, is depreciated by the Supreme Court in case of Madras Port trust -vs-Hymanshu International By its Proprietor v. Venkatadri (Dead) By L.R.S. reported in (1979) 4 SCC 176. He further submits that the plea of limitation should have been raised at the first available opportunity and should also be sufficiently spelt out from the pleadings of the parties and placed reliance upon a judgment of the Supreme Court in case of Municipal Council, Ahmed Nagar & Anr. -vs- Shah Hyder Beig & ors., reported in (2000) 2 SCC 48. He succinctly submits that the ground of delay and/or latches is not inviolable rule of law warranting the refusal to entertain the writ petition but in a deserving case, more particularly, where a reasonable satisfactory explanation are provided for such delay, the writ petition is entertainable and in support of the aforesaid contentions, he relies upon a judgment of the Supreme Court in case of Shankara Co-operative Housing Society Ltd.-vs- M. Prabhakar & Ors., reported in (2011) 5 SCC 607. As a last resort, Mr. Kar submits that the right to sue accrues or at least came to be known when the division bench held that there was a gross illegality and/or irregularities committed in the recruitment process and immediately on affirmation of the said judgment by the Supreme Court, the present writ petition is filed and, therefore, the plea of delay and latches cannot be attributed.
Having considered the respective submissions, indubitably there have been a gross infirmities and/or illegalities in conducting the West Bengal Judicial Examination, 2009 as held by the Division Bench of this Court and affirmed by the Supreme Court. Had it been a timely action, this Court would not have any hesitation to rely and apply the ratio of the judgment of the Division Bench but for the inordinate delay in approaching the Court whether any relief could be provided to the writ petitioners of the respective writ petitions. The Division Bench has elaborately and explicitly narrated the sequel of events manifesting the irregularities and/or illegalities in the said selection process. Being the bench of lesser quorum, the dictum of the division bench is to be respected with all rigour and force. Since the facts are undisputed and evident from the findings of the division bench, this Court does not delve to go into the intricacies thereof.
As indicated, the core point centering round the gamut of dispute is whether the writ petitions are liable to be dismissed on the ground of delay by applying the principle of delay defeat equity.
It is indeed true that the 9 candidates to whom the appointment letters were issued but postings were not given approached the Court vigilantly and pursued their remedy against such arbitrary and illegal action either of the High Court at Calcutta or the State. While deciding their rights and upon consideration of the respective stands of the State as well as the High Court, Calcutta, the division bench found anomalies and/or irregularities in the selection process, more particularly, in relation to the number of vacancies which arose in the year 2009 and their manner of recruitment. The judgment of the division bench was delivered on September 12, 2011 which stood affirmed upon the disposal of the special writ petition on September 18, 2013. The Supreme Court had no occasion to test the judgment of the division bench of this Court as the High Court made a concession on the rights of those 9 candidates and suggested a workable solutions to mitigate the situation. It admits no quarrel to the proposition of law that the judgment rendered on concession does not partake the character of a binding precedent. To wriggle out the clutches of the plea of delay and latches, the writ petitioners offered in explanation that although their right accrued on the date of the judgment of the division bench but since the said order was carried to the Supreme Court, no action could be taken immediately after the judgment of the division bench. To scuttle the above submission, it would be pertinent to record that the Supreme Court finally disposed of the appeal on September 18, 2013 whereas all these writ petitions were filed in the month of May, 2013 much prior thereto. It cannot be conceived off that the right to vindicate the grievances accrues on the affirmation of the judgment of the division bench and not from the date of the decision of the division bench.
In case of Pyarimohan Samantaray & Ors., (supra), the three judge bench of the Supreme Court rejected the writ petition on the ground of inordinate unexplained delay. The Supreme Court held that non-redressal of the grievance for a considerable period of time have resulted in the appointment of the various appointees resulting in justifiable thinking that there is no challenge to such appointment which cannot be taken away, in these words:
"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 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 India1 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 11 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." In case of U.P. Jal Nigam (supra), the Apex Court held that the delay and latches is one of the relevant factors in exercise of the discretionary relief under Article 226 of the Constitution and laid down the chief points to be judged such issue firstly; acquiescence on the petitioners part and secondly; any change of position that has occurred on the respondents' part. It is further held that the litigants sleeping over their rights for long and woke up only after having impetus from a decision of the Court cannot be allowed to get a relief under the equitable doctrine in these words:
"6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30-6-2005 and 31-7-2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 and 2006 much after their retirement. Whether such persons should be granted the same relief or not?
7. Learned Senior Counsel for the appellants has invited our attention to various decisions to impress upon that persons who are guilty of such laches and acquiesced with the situation should not be granted any relief because it is going to cost the Nigam a heavy financial burden to the tune of Rs 17,80,43,108. Therefore, relief should be confined to those persons who were continuing in service and filed their writ petitions in time but not to all and sundry who woke up to file the writ petitions much after their retirement. In this connection, our attention was invited to a decision of this Court in Rup Diamonds v. Union of India wherein their Lordships observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, their Lordships held as follows: (SCC pp. 356-57) "Petitioners are reagitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after almost a year after the first rejection. As observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the Government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners' case in any such appeal."
8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya. In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached this Court and this Court after considering the matter observed as under: (SCC p. 268) "Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub-sections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub- section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay."
9. Similarly in Jagdish Lal v. State of Haryana this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) "The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."
10. In Union of India v. C.K. Dharagupta it was observed as follows:
(SCC p. 398, para 9) "9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case8. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."
11. In Govt. of W.B. v. Tarun K. Roy their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34) "34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."
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 position 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 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."
13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"
In case of Nadia District Primary School Council (supra), the Supreme Court denied the relief against the recalcitrant litigant who showed no vigilance to pursue their rights with following observations:
"10. In this connection, learned counsel invited our attention to a recent decision of this Court in Chairman, U.P. Jal Nigam v. Jaswant Singh. In that case, referring to various decisions of this Court, it was observed that those who sit on the fence and wait for a favourable order and thereafter wake up to take up the matter, are not entitled to any relief. In para 13 of the judgment, this Court concluded as follows: (SCC p. 471) "13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"
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."
In case of M.K. Sarkar (supra), the Supreme Court held that the accrual of the cause of action must be referable to the original cause of action and is not relatable to a date of decision in the following:
"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 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.
16. A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct "consideration" without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect."
In case of Shiba Shankar Mohapatra (supra), the Supreme Court negatived the relief to the fence-sitters on the ground of delay and latches in the following:
"29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty of delay and the laches. The court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (Vide Aflatoon v. Lt. Governor of Delhi; State of Mysore v. V.K. Kangan; Municipal Council, Ahmednagar v. Shah Hyder Beig; Inder Jit Gupta v. Union of India; Shiv Dass v. Union of India32; A.P. SRTC v. N. Satyanarayana and City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala)."
The inviolable conclusion deducible from the above noted decisions are that the stale and dead claims should not be encouraged in exercise of the discretionary relief under Article 226 of the Constitution of India. A line of distinction is to be drawn between a vigilant and a non-vigilant litigant and they cannot be equated on the same footing. A litigant who was sitting on a fence and waiting for the result of the litigation initiated by other litigant promptly and after the favourable result approaches the Court to seek equality, should not be encouraged. Delay and latches is one of the important factor to push away the recalcitrant or invoible litigant who was watching the proceeding of the other and ventilated the grievance only after a favourable decision is obtained by the other litigant. The plea of inordinate delay is not applicable in case of an infringement of the fundamental rights. The proceeding may attract dismissal, more so, when a third parties' right are created in interregnum. It is not an inflexible rule but depends upon the rational and satisfactory explanation and, therefore, varies from case to case.
In the instant case, it is candidly confessed by all the writ petitioners that they have a knowledge of the proceeding initiated by 9 of the candidates who were denied postings but with the rider that the anomalies, illegalities, irregularities and/or infirmities were not known until the judgment of the division bench of this Court in case of APOT No. 260 of 2011. Even thereafter, there was no attempt to approach the Court as the petitioners' thought that the matter is carried to the Supreme Court and their rights have not been crystallized. Admittedly before the final order of disposal of the appeal by the Supreme Court, the present writ petitions are filed. To countenance the above, the petitioner relies upon a judgment of this Court in case of Bibhuti Bhusan Roy (supra). The dispute involved in the said report relates to the validity of the decree passed in a suit filed against one of the defendant who died during the pendency of the suit leaving a will appointing one of this son as an executor but the said executor was substituted in his personal capacity as one of the legal heir. In the above backdrop of the fact it was held that if the plaintiff has sued a person in good faith who is apparent legal representative in absence of any fraud and collusion, the decree binds the Estate irrespective of the fact who is the actual legal representative. I am afraid whether the aforesaid judgment has any relevance in the present context, the said 9 candidates cannot be said to have represented the entire set of the other eligible or ineligible candidates. The said 9 candidates were pursuing their own rights as they were offered an appointment letters but no posting was provided. Those 9 candidates cannot be said to have represented the entire set of the candidates of the said selection process in their representative capacities.
In case of Peyman (supra), the matter relates to the assignment of a demised restaurant containing a covenant that the lease would not be assigned without the prior consent in righting of the landlord. For obtaining the consent, another person impersonating as the lessee convinced the landlord's agent and obtained the consent. After coming to know of such impersonation, an advice was sought from the solicitor who did not apprise the landlord of his right to rescind the consent. Subsequently, an advice from the another solicitor made him aware of such right which was duly availed off. In the above perspective, it was held that mere knowledge of a fact giving rise to rescind and subsequent in action till the initiation of the proceeding does not prevent the landlords from exercising such right at a later period of time. The said case have no bearing in the present controversy. The petitioners were simply watching the proceeding and waiting for its favourable outcome. The plea of right of election has a little role to play in the present context and, therefore, the said judgment cannot be of any help to the writ petitioners.
In case of Rajesh Awasthi (supra), the Supreme Court was dealing a matter relating to the filling up the post of a Chairperson of U.P. State Electricity Regulatory Commission under Section 85(5) of the Electricity Act, 2003. A challenge was thrown to the appointment on the plea that the provisions contained under the aforesaid section are not complied with and/or adhere thereto. It was sought to be argued that those provisions are procedural in nature and departure therefrom does not entail the appointment in valid, the Supreme Court held:
"23. We are of the view that non-compliance with sub-section (5) of Section 85 of the Act is not a procedural violation, as it affects the very substratum of the appointment, being a mandatory requirement to be complied with, by the Selection Committee before recommending a person for the post of Chairperson. We are of the view that non- compliance with sub-section (5) of Section 85 of the Act will vitiate the entire selection process since it is intended to be followed before making the recommendation to the State Government. Non- compliance with mandatory requirements results in nullification of the process of selection unless it is shown that performance of that requirement was impossible or it could be statutorily waived. The expression "before recommending any person" clearly indicates that it is a mandatory requirement to be followed by the Selection Committee before recommending the name of any person for the post of Chairperson. The expression "before" clearly indicates the intention of the legislature. The meaning of the expression "before" came for consideration before this Court in State Bank of Travancore v. Mohd. Mohammed Khan where the words "any debt due at and before the commencement of this Act to any banking company" as occurring in Section 4(1) of the Kerala Agriculturists' Debt Relief Act, 1970, were construed by the Supreme Court to mean "any debt due at and before the commencement of this Act". We, therefore, find it difficult to accept the contention of the learned Senior Counsel that this, being a procedural provision and non-compliance with sub-section (5) of Section 85 of the Act, is a defect curable by sending the recommendation back to the Selection Committee for compliance with sub-section (5) of Section 85 of the Act."
In the said report, there was no plea of delay and latches canvassed before the Supreme Court; neither the reading of the facts recorded therein would remotely suggest, such plea to be involved therein.
Mr. Kar has taken an exception against the plea of High Court as well as the State relating to delay and latches by drawing an inspiration from a judgment of the Supreme Court delivered in case of Madras Port Trust (supra). The question involved therein was whether the claim for refund of an amount of warfare, demurrage and transit charges is barred by Section 110 of the Madras Port Trust Act. The High Court passed a decree and the special leave petition was admitted with clear understanding that the port trust would pay the amount of refund together with the cost of the appeal irrespective of its result. At the final hearing, a plea of limitation was taken when the Supreme Court held that the public authority in morality and justice should not take up such a plea to defeat the just claim of the citizen. At the second breadth, the Apex Court held that such plea if taken before the Court should be well- founded. The said judgment does not inunequivocal terms says that plea of delay and latches can never be taken by the authorities and, therefore, does not have any relevance in the present case. Even in case of Shah Hyder Beig & Ors.(supra), the Supreme Court in clear terms held that the equitable doctrine has it fullest application in a matter of grant of relief under Article 226 of the Constitution in the following:
"14. The High Court has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of a school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above."
In case of Shankara Co-operative Housing Society Ltd. (supra), the two judge bench of the Supreme Court after scanning all the previous judgment rendered on the point of delay and latches held:
"54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are:
(1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
(3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard-and-fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts.
(5) That representations would not be adequate explanation to take care of the delay.
67. It is now well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. Inordinate and unexplained delay in approaching the Court in a writ is indeed an adequate ground for refusing to exercise discretion in favour of the petitioners therein. The unexplained delay on the part of the petitioner in approaching the High Court for redressal of their grievances under Article 226 of the Constitution was sufficient to justify rejection of the petition.
68. The other factor the High Court should have taken into consideration is that during the period of delay, interest has accrued in favour of the third party and the condonation of unexplained delay would affect the rights of the third parties. We are also of the view that reliance placed by Shri Ranjit Kumar on certain observations made by this Court would not assist him in the facts and circumstances of this case. While concluding on this issue, it would be useful to refer the observations made by the Court in Municipal Council, Ahmednagar v. Shah Hyder Beig, wherein it is stated that:
(SCC p. 54, para 14) Delay defeats equity and that the discretionary relief of condonation can be had, provided one has not given by his conduct a go-by to his rights."
The inevitable conclusion which could be culled out from the above referred decisions that the principle of delay and latches has fullest application in a proceeding under Article 226 of the Constitution of India and each case is to be judged on the facts involved therein. Such plea must be well-founded and expressly and clearly discernible from the pleadings of the parties. The explanation sought to be offered by the writ petitioners smokes non-diligence on the part of the writ petitioners in approaching the Court.
This Court, therefore, does not find that relief as sought for in these writ petitions could at all be granted to the writ petitioners.
The writ petitions are thus dismissed.
However, there shall be no order as to costs.
Urgent photostat certified copy of the judgment, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)