For Petitioner : Mr. Prateek Sharma, Advocate
For Respondents No. 1 & 2 : Ms. Neelima Singh Thakur,
Panel Lawyer
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
17/04/2025
1. The petitioner has filed this petition seeking the following relief(s):-
10.2 That, this Hon'ble Court may kindly be pleased to direct
the respondents to grant promotion to the petitioner from
13.09.2012 by placing her name over and above respondent
no. 3 in seniority, with all consequential benefits and by setting
aside the impugned order dated 13.09.2012, if required.
(ANNEXURE P/2) to the extent it relates to the petitioner.
10.3 That, any other relief/order which may deem fit and just
in the facts and circumstances of the case including award of
the costs of the petition may be given."
2. Mr. Prateek Sharma, learned counsel appearing for the petitioner
would submit that the petitioner was appointed to the post of Assistant
Grade-III under the respondents vide order dated 08.05.2007. He
would contend that the petitioner participated in the departmental
examination conducted on 03.05.2008. He was appointed on a regular
pay scale vide order dated 17.12.2008. He would further submit that
the department issued another order on 14.09.2010 wherein it was
stated that her probation period came to an end on 14.09.2010 after
the completion of two years of service. He would also submit that the
name of the petitioner was wrongly placed below respondent No. 3 in
the gradation list published on 01.04.2011. He would also contend that
on the basis of the impugned gradation list, a promotion order was
issued on 13.09.2012 wherein the name of the petitioner was not
considered for promotion. He would argue that the respondent
authorities may be directed to grant promotion along with all
consequential benefits to the petitioner from 13.09.2012 when juniors
to her were promoted to the post of Assistant Grade-II. He would also
argue that the petitioner was eligible for promotion to the post of
Assistant Grade-II on 13.09.2012, but her name was wrongly fixed in
the seniority list below respondent No. 3. He would pray to allow this
petition.
3. On the other hand, Ms. Neelima Singh Thakur, learned Panel Lawyer
appearing for the State/respondents No. 1 and 2 would oppose. Ms.
Neelima Singh Thakur would submit that the gradation list was
published in the year 2011, but the petitioner never challenged it. She
would further submit that pursuant to the gradation list, the order of
promotion was issued on 13.09.2012 by the State of Chhattisgarh. She
would also submit that the order of promotion was issued on
13.09.2012 and the petitioner has filed this petition on 29.08.2017
without explaining the inordinate delay. She would contend that the
petition deserves to be dismissed.
4. I have heard learned counsel for the parties and perused the
documents.
5. In para-7 of the writ petition, the petitioner has clearly pleaded that
there is no delay in filing the instant petition. The petitioner has sought
relief with regard to setting aside the promotion order dated 13.09.2012
and further a direction to the respondents to grant promotion to the
petitioner from that date.
6. Admittedly, the petitioner has filed this petition in the year 2017 without
explaining the inordinate delay. It is also not in dispute that the
petitioner never challenged the seniority list either before the
authorities or before the competent Court.
7. The issue of delay and laches is no more res integra. The Hon'ble
Supreme Court in the matter of Chennai Metropolitan Water Supply
and Sewerage Board and Others Vs. T.T. Murali Babu, (2014) 4
SCC 108, held as under:-
'17. 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 remain unauthorizedly absent on
the pretext of some kind of 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.
8. Recently, the Apex Court, in the matter of Rushibhai
Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation, 2022
SCC Online SC 641 held as under:-
'9. The doctrine of delay and laches, or for that
matter statutes of limitation, are considered to be
statutes of repose and statutes of peace, though
some contrary opinions have been expressed (in
Nav Rattanmal Vs. state of Rajasthan, AIR 1961
SC 1704). The courts have expressed the view that
the law of limitation rests on the foundations of
greater public interest for three reasons, namely,
(a) that long dormant claims have more of cruelty
than justice in them; (b) that a defendant might
have lost the evidence to disapprove a stale claim;
and (iii) that persons with good causes of action
(who are able to enforce them) should pursue them
with reasonable diligence (State of Kerala Vs. V.R.
Kalliyanikutty, (1999) 3 SCC 657 relying on
Halsbury's Laws of England, 4th Edn., Vol. 28,
para 605; Halsbury's Laws of England , Vol. 68
(2021) para 1005. Equally, change in de facto
position or character, creation of third party rights
over a period of time, waiver, acquiesce, and need
to ensure certitude in dealings, are equitable public
policy considerations why period of limitation is
prescribed by law. Law of limitation does not apply
to writ petitions, albeit the discretion vested with a
constitutional court is exercised with caution as
delay and laches principle is applied with the aim to
secure the quiet of the community, suppress fraud
and perjury, quicken diligence, and prevent
oppression.(see Popat and Kotecha Property Vs.
State Bank of India Staff Association (2005) 7 SCC
510).Therefore, some decisions and judgments do
not look upon pleas of delay and laches with
favour, especially and rightly in cases where the
persons suffer from adeptness, or incapacity to
approach the courts for relief. However, other
decisions, while accepting the rules of limitation as
well as delay and laches, have observed that such
rules are not meant to destroy the rights of the
parties but serve a larger public interest and are
founded on public policy. There must be a lifespan
during which a person must approach the court for
their remedy. Otherwise, there would be unending
uncertainty as to the rights and obligations of the
parties. (See N. Blarkrishnan Vs. M.
Krishnamurthy, (1998)7 SCC 123. Referring to the
principle of delay and laches, this Court, way back
in Moons Mils Ltd Vs. M.R. Mehar, President,
Industrial Court, Bombay AIR 1967 SC 1450, had
referred to the view expressed by Sir Barnes
Peacock in The Lindsay Petroleum Company and
Prosper Armstrong Hurd, Abram Farewell, and
John Kemp, (L.R.) 5 P.C.221 in the following words:
"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 this
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 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."
9. The Hon'ble Supreme Court in the matter of Bichitrananda Behera
Vs. State of Orissa and others, 2023 Livelaw (SC) 883, under
relevant para 21 held as under:-
"21. Profitably, we may reproduce relevant
passagesfrom certain decisions of this Court:
(A) Union of India v Tarsem Singh, (2008) 8 SCC
648:
"To summarise, normally, a belated service related
claim will be rejected on the ground of delay and
laches (where remedy is sought by filing a writ
petition) or limitation (where remedy is sought by
an application to the Administrative Tribunal). One
of the exceptions to the said rule is cases relating
to a continuing wrong. Where a service related
claim is based on a continuing wrong, relief can be
granted even if there is a long delay in seeking
remedy, with reference to the date on which the
continuing wrong commenced, if such continuing
wrong creates a continuing source of injury. But
there is an exception to the exception. If the
grievance is in respect of any order or
administrative decision which related to or affected
several others also, and if the reopening of the
issue would affect the settled rights of third parties,
then the claim will not be entertained. For example,
if the issue relates to payment or refixation of pay
or pension, relief may be granted in spite of delay
as it does not affect the rights of third parties. But if
the claim involved issues relating to seniority or
promotion, etc., affecting others, delay would
render the claim stale and doctrine of
laches/limitation will be applied. Insofar as the
consequential relief of recovery of arrears for a
past period is concerned, the principles relating to
recurring/successive wrongs will apply. As a
consequence, the High Courts will restrict the
consequential relief relating to arrears normally to a
period of three years prior to the date of filing of the
writ petition." (emphasis supplied)
(B) Union of India v N Murugesan, (2022) 2 SCC
25:
"Delay, laches and acquiescence
20. The principles governing delay, laches, and
acquiescence are overlapping and interconnected
on many occasions. However, they have their
distinct characters and distinct elements. One can
say that delay is the genus to which laches and
acquiescence are species. Similarly, laches might
be called a genus to a species by name
acquiescence. However, there may be a case
where acquiescence is involved, but not laches.
These principles are common law principles, and
perhaps one could identify that these principles find
place in various statutes which restrict the period of
limitation and create non consideration of
condonation in certain circumstances. They are
bound to be applied by way of practice requiring
prudence of the court than of a strict application of
law. The underlying principle governing these
concepts would be one of estoppel. The question of
prejudice is also an important issue to be taken
note of by the court.
Laches
21. The word "laches" is derived from the French
language meaning "remissness and slackness". It
thus involves unreasonable delay or negligence in
pursuing a claim involving an equitable relief while
causing prejudice to the other party. It is neglect on
the part of a party to do an act which law requires
while asserting a right, and therefore, must stand in
the way of the party getting relief or remedy.
22. Two essential factors to be seen are the length
of the delay and the nature of acts done during the
interval. As stated, it would also involve
acquiescence on the part of the party approaching
the court apart from the change in position in the
interregnum. Therefore, it would be unjustifiable for
a Court of Equity to confer a remedy on a party
who knocks its doors when his acts would indicate
a waiver of such a right. By his conduct, he has put
the other party in a particular position, and
therefore, it would be unreasonable to facilitate a
challenge before the court. Thus, a man
responsible for his conduct on equity is not
expected to be allowed to avail a remedy.
23. A defence of laches can only be allowed when
there is no statutory bar. The question as to
whether there exists a clear case of laches on the
part of a person seeking a remedy is one of fact
and so also that of prejudice. The said principle
may not have any application when the existence
of fraud is pleaded and proved by the other side. To
determine the difference between the concept of
laches and acquiescence is that, in a case
involving mere laches, the principle of estoppel
would apply to all the defences that are available to
a party. Therefore, a defendant can succeed on the
various grounds raised by the plaintiff, while an
issue concerned alone would be amenable to
acquiescence.
Acquiescence
24. We have already discussed the relationship
between acquiescence on the one hand and delay
and laches on the other.
25. Acquiescence would mean a tacit or passive
acceptance. It is implied and reluctant consent to
an act. In other words, such an action would qualify
a passive assent. Thus, when acquiescence takes
place, it presupposes knowledge against a
particular act. From the knowledge comes passive
acceptance, therefore instead of taking any action
against any alleged refusal to perform the original
contract, despite adequate knowledge of its terms,
and instead being allowed to continue by
consciously ignoring it and thereafter proceeding
further, acquiescence does take place. As a
consequence, it reintroduces a new implied
agreement between the parties. Once such a
situation arises, it is not open to the party that
acquiesced itself to insist upon the compliance of
the original terms. Hence, what is essential, is the
conduct of the parties. We only dealt with the
distinction involving a mere acquiescence. When
acquiescence is followed by delay, it may become
laches. Here again, we are inclined to hold that the
concept of acquiescence is to be seen on a case-
to-case basis." (emphasis supplied)
(C) Chairman, State Bank of India v M J James,
(2022) 2 SCC 301:
"36. What is a reasonable time is not to be put in a
straitjacket formula or judicially codified in the form
of days, etc. as it depends upon the facts and
circumstances of each case. A right not exercised
for a long time is nonexistent. Doctrine of delay and
laches as well as acquiescence are applied to non-
suit the litigants who approach the court/appellate
authorities belatedly without any justifiable
explanation for bringing action after unreasonable
delay. In the present case, challenge to the order of
dismissal from service by way of appeal was after
four years and five months, which is certainly highly
belated and beyond justifiable time. Without
satisfactory explanation justifying the delay, it is
difficult to hold that the appeal was preferred within
a reasonable time. Pertinently, the challenge was
primarily on the ground that the respondent was
not allowed to be represented by a representative
of his choice. The respondent knew that even if he
were to succeed on this ground, as has happened
in the writ proceedings, fresh inquiry would not be
prohibited as finality is not attached unless there is
a legal or statutory bar, an aspect which has been
also noticed in the impugned judgment. This is
highlighted to show the prejudice caused to the
appellants by the delayed challenge. We would,
subsequently, examine the question of
acquiescence and its judicial effect in the context of
the present case.
Xxx
38. In Ram Chand v. Union of India [Ram Chand v.
Union of India, (1994) 1 SCC 44] and State of U.P.
v. Manohar [State of U.P. v. Manohar, (2005) 2
SCC 126] this Court observed that if the statutory
authority has not performed its duty within a
reasonable time, it cannot justify the same by
taking the plea that the person who has been
deprived of his rights has not approached the
appropriate forum for relief. If a statutory authority
does not pass any orders and thereby fails to
comply with the statutory mandate within
reasonable time, they normally should not be
permitted to take the defence of laches and delay.
If at all, in such cases, the delay furnishes a cause
of action, which in some cases as elucidated in
Union of India v. Tarsem Singh [Union of India v.
Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC
(L&S) 765] may be continuing cause of action.The
State being a virtuous litigant should meet the
genuine claims and not deny them for want of
action on their part. However, this general principle
would not apply when, on consideration of the
facts, the court concludes that the respondent had
abandoned his rights, which may be either express
or implied from his conduct. Abandonment implies
intentional act to acknowledge, as has been held in
para 6 of Motilal Padampat Sugar Mills Co. Ltd. v.
State of U.P. [Motilal Padampat Sugar Mills Co. Ltd.
v. State of U.P., (1979) 2 SCC 409 : 1979 SCC
(Tax) 144] Applying this principle of acquiescence
to the precept of delay and laches, this Court in
U.P. Jal Nigam v.Jaswant Singh [U.P. Jal Nigam v.
Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC
(L&S) 500] after referring to several judgments, has
accepted the following elucidation in Halsbury's
Laws of England : (Jaswant Singh case [U.P. Jal
Nigam v. Jaswant Singh, (2006) 11 SCC 464 :
(2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras
1213)
"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?"
39. Before proceeding further, it is important to
clarify distinction between "acquiescence" and
"delay and laches". Doctrine of acquiescence is an
equitable doctrine which applies when a party
having a right stands by and sees another dealing
in a manner inconsistent with that right, while the
act is in progress and after violation is completed,
which conduct reflects his assent or accord. He
cannot afterwards complain. [See Prabhakar v.
Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC
(L&S) 149. Also, see Gobinda Ramanuj Das
Mohanta v. Ram Charan Das, 1925 SCC OnLine
Cal 30 : AIR 1925 Cal 1107] In literal sense, the
term acquiescence means silent assent, tacit
consent, concurrence, or acceptance, [See
Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine
Kar 331 : (1992) 194 ITR 584] which denotes
conduct that is evidence of an intention of a party
to abandon an equitable right and also to denote
conduct from which another party will be justified in
inferring such an intention. [See Krishan Dev v.
Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP
34] Acquiescence can be either direct with full
knowledge and express approbation, or indirect
where a person having the right to set aside the
action stands by and sees another dealing in a
manner inconsistent with that right and in spite of
the infringement takes no action mirroring
acceptance. [See "Introduction", U.N. Mitra, Tagore
Law Lectures -- Law of Limitation and Prescription,
Vol. I, 14th Edn., 2016.] However, acquiescence
will not apply if lapse of time is of no importance or
consequence.
40. Laches unlike limitation is flexible. However,
both limitation and laches destroy the remedy but
not the right. Laches like acquiescence is based
upon equitable considerations, but laches unlike
acquiescence imports even simple passivity. On
the other hand, acquiescence implies active assent
and is based upon the rule of estoppel in pais. As a
form of estoppel, it bars a party afterwards from
complaining of the violation of the right. Even
indirect acquiescence implies almost active
consent, which is not to be inferred by mere silence
or inaction which is involved in laches.
Acquiescence in this manner is quite distinct from
delay. Acquiescence virtually destroys the right of
the person. [See Vidyavathi Kapoor Trust v. CIT,
1991 SCC OnLine Kar 331 : (1992) 194 ITR 584]
Given the aforesaid legal position, inactive
acquiescence on the part of the respondent can be
inferred till the filing of the appeal, and not for the
period post filing of the appeal. Nevertheless, this
acquiescence being in the nature of estoppel bars
the respondent from claiming violation of the right
of fair representation."
10. It is the duty of the court to scrutinize whether such enormous delay is
to be ignored without any justification. Remaining innocuously oblivious
to such delay does not foster the cause of justice. On the contrary, it
brings injustice and 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, such delay does not deserve any
indulgence and on the said ground alone this Court deems it
appropriate to dismiss this petition at the very threshold. The doctrine
of delay and laches, or for that matter statutes of limitation are
considered to be statutes of repose and statutes of peace. There must
be a lifespan during which a person must approach the court for their
remedy. Otherwise, there would be unending uncertainty as to the
rights and obligations of the parties.
11. Considering the facts and circumstances of the present case in light of
the judgments passed by the Hon'ble Supreme Court in the matters of
Chennai Metropolitan Water Supply (supra), Rushibhai
Jagdishbhai Pathak (supra) and Bichitrananda Behera (supra), it is
quite vivid that the petitioner has approached this Court after a delay of
five years and has challenged the promotion order dated 13.09.2012
by filing the writ petition on 29.08.2017 without explaining the delay,
therefore, in the opinion of this Court, no case is made out for
interference.
12. Consequently, the petition fails and is hereby dismissed. No costs.
Sd/-
(Rakesh Mohan Pandey)
Judge
vatti
