Allahabad High Court
Shiv Kumar Chaurasiya vs State Of U.P. Thru. Addl. Chief ... on 18 February, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:10381
Court No. - 6
Case :- WRIT - A No. - 2048 of 2025
Petitioner :- Shiv Kumar Chaurasiya
Respondent :- State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Estate Deptt. Lko. And Another
Counsel for Petitioner :- Shivam Sharma
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Shivam Sharma, learned counsel for petitioner as well as learned Standing Counsel for respondents.
2. It has been submitted by learned counsel for petitioner that the petitioner was appointed as Driver in the U.P. Government Estate Department on 31.03.1995 and despite being substantially appointed, he was not being paid his salary and further his service was terminated by oral order of termination date 01.06.1996.
3. Aggrieved by the said oral order of termination, petitioner approached this Court by filing a writ petition being Writ Petition No. 534 (SS) of 1996 which was allowed vide order dated 24.09.2013 where the oral order of termination was quashed and the respondents were directed to reinstate the petitioner in service and he was further allowed the benefit of continuity in services but was not given the benefit of backwage.
4. It is in pursuance of the judgment dated 29.04.2013 that the petitioner was reinstated in service vide order dated 12.11.2013 but they did not give the benefit of past service to the petitioner and neither was he granted any increment or pay fixation which according to him was admissible.
5. When the petitioner preferred a representation to the respondents, they rejected his request by means of order dated 20.08.2015. There is no dispute that the petitioner never assailed the validity of the order dated 20.08.2015 before any authority or forum but subsequent merely because of certain notings in the file which has been quoted by him in paragraph No. 15 stating that the matter has been revived, he has filed the present writ petition seeking a direction to the respondents to allow the benefit of continuity of service to the petitioner w.e.f. 31.03.1995 ignoring the order dated 20.08.2015.
6. Learned Standing Counsel on the other hand has opposed the writ petition and has submitted submitted that petitioner has raised his grievances before the respondents who had rejected the same by order dated 20.08.2015 and for last nearly 9 years the petitioner has not assailed the validity of the same before any forum and accordingly a stale claim cannot be revived by filing a writ petition in seeking a direction to the respondents to decide the representation of the petitioner.
7. It has been further submitted that in case the respondents had passed the order dated 20.08.2015 ignoring the judgment and order of this Court dated 24.09.2013, it would be open for the petitioner to have issued appropriate proceedings for contempt but it seems that no legal proceedings have been initiated by him in this regard. Accordingly, considering that the petitioner himself has not assailed the order dated 20.08.2015 which has become final and further looking into the fact that the matter is 9 years old and petitioner was fully aware of the entire proceedings inasmuch as he himself had assailed the order of termination before this Court by filing writ petition being Writ Petition No. 534 (SS) of 1996 and even in the writ petition there is no attempt justifying the delay in approaching this Court for the relief as sought for by the petitioner, accordingly this Court would not revive a stale claim by passing an order as sought by the petitioner for a direction to the respondents to decide his representation.
8. It is trite law that delay or latches is one of the factors which should be borne in mind while exercising discretionary powers under Article 226. The High Court may refuse to invoke its extraordinary powers to revive any stale claim in case laxity is found on the part of the applicant. Hon'ble Supreme Court has reiterated this principle in case of Mrinmoy Maity Vs. Chhanda Koley and others (2024) SCC OnLIne SC 551 as under:-
"9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and latches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.
10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.
11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 has held to the following effect:
"56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court, [AIR 1967 SC 1450] and Bhoop Singh v. Union of India, [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969]). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, [(1969) 1 SCC 110], Durga Prashad v. Chief Controller of Imports & Exports, [(1969) 1 SCC 185] and Rabindranath Bose v. Union of India, [(1970) 1 SCC 84]).
58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose."
12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corportion Ltd. v. K. Thangappan, (2006) 4 SCC 322 whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder:
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports, [(1969) 1 SCC 185 : AIR 1970 SC 769]. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, [[L.R.] 5 P.C. 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher, [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service, [(1969) 1 SCR 808 : AIR 1969 SC 329]. Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India, [(1970) 1 SCC 84 : AIR 1970 SC 470] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal, [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."
13. Reiterating the aspect of delay and latches would disentitle the discretionary relief being granted, this Court in the case of Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 has held:
"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 scrutinise 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."
9. It is noticed that the matter had attained finality by passing an order dated 20.8.2015, which was not assailed by the petitioner and accordingly, it can be assumed that the petitioner had duly accepted the said order and hence after 9 years it would be ignorable to assail the same.
10. For the reasoned aforesaid, this Court does not find any merit in the writ petition which is accordingly dismissed.
(Alok Mathur, J.)
Order Date :- 18.2.2025
Ravi/
