Chattisgarh High Court
Abdul Kabir Qureshi vs State Of Chhattisgarh on 14 February, 2025
-1-
Digitally signed
by NADIM
MOHLE
2025:CGHC:7929
NAFR
HIGH COURT of CHHATTISGARH AT BILASPUR
WPS No. 8378 of 2018
Abdul Kabir Qureshi S/o Hazi Abdul Labbar Khan Aged About 62 Years Retired As
Accountant R/o Takiaya Para Durg District Durg Chhattisgarh., District : Durg,
Chhattisgarh. ... Petitioner
versus
1 - State of Chhattisgarh Through The Secretary Department of Law and Legislation
Mahanadi Bhawan Mantaralaya New Raipur District Raipur, Chhattisgarh.
2 - Regional General High Court of Chhattisgarh Bodri Bilaspur Chhattisgarh., District :
Bilaspur, Chhattisgarh.
3 - The Selection and Promotion Commitee Through Its Chairman District Durg ,durg
District Durg Chhattisgarh., District : Durg, Chhattisgarh.
4 - District and Session Judge Durg District Durg Chhattisgarh., District : Durg,
Chhattisgarh.
5 - Bodhan Lal Swarnkar, Retired Accountant, District and Session Judge office, District
: Durg, Chhattisgarh. ... Respondent(s)
(Cause Title is taken from Case Information System)
For Petitioner : Mr. Praveen Dhurandhar, Advocate
For State : Mr. Prateek Tiwari, Panel Lawyer
For Respondents No.2 to 4 : Mr. Manoj Paranjpe, Advocate with
Ms. Anushka Sharma, Advocate
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
14.02.2025
1) The petitioner has filed this petition seeking the following relief(s):-
"10.1 That, this Hon'ble Court may kindly be pleased to
quash/set-aside the order dated 01-10-2018 (Annexure P-
1).
10.2 That, this Hon'ble Court may kindly be pleased to
direct the respondents to consider the petitioner for
promotion to the post of Assistant Accountant from the
date the respondent no. 5 was promoted to the post of
Assistant Accountant that is 14/09/2005 with all
consequential benefits.
10.3 That, this Hon'ble Court may kindly be pleased to
direct the respondent No.2 to reconsider the claim of
petitioner in the light of reply filed by the respondent No.4
dated 11-04-2008 (Annexure P-7).
10.4 That, the Hon'ble Court may kindly be pleased to
grant any other relief, as it may deem-fit and appropriate.
2) Brief facts of the present case are as under:-
A. The petitioner was appointed to the post of AG-II under respondent No.
4 on 29.01.1979, whereas respondent No. 5 was appointed on the same
post vide order dated 18.05.1984.
B. Respondent No. 5 was promoted to the post of Assistant Accountant
vide order dated 14.09.2005, but the name of the petitioner was not
considered.
C. The petitioner made a representation on 23.09.2005 and when no heed
was paid, he preferred WP No. 2012/2006, which was disposed of vide
order dated 26.04.2006, whereby respondent No.4 was directed to
decide the representation. However, the representation made by the
petitioner was rejected by respondent No.4 vide order dated 07.10.2005,
prior to the disposal of the writ petition.
D. The gradation list was issued on 23.09.2006, and the petitioner again
made a representation before respondent No.4 on 18.10.2006, which
was rejected on 20.11.2006.
E. In the order dated 20.11.2006, respondent No.4 stated that the name of
the petitioner was within the zone of consideration, but respondent No.5
was found suitable.
F. The petitioner filed an appeal before the higher authority, i.e.,
respondent No. 2 on 20.02.2007.
G. A response was sought from respondent No.4, who stated that there
were adverse entries in the ACR of the petitioner for the years 2002-
2005. The petitioner submitted a representation, stating that those
adverse entries were never communicated to him.
H. When no decision was taken on his appeal, the petitioner filed WPS No.
5565/2018. The petition was disposed of vide order dated 28.08.2018,
with a direction to respondent No.2 to decide the pending appeal.
Respondent No.2, vide order dated 01.10.2018 dismissed the appeal,
holding that there were adverse entries in the ACR for the years 2002-
2005.
3) Learned counsel appearing for the petitioner submits that the petitioner was
appointed to the post of AG-II on 29.01.1979, whereas respondent No.5 was
appointed on 18.05.1985. Thus the petitioner was senior to respondent No.5, but
his name was deliberately not considered for promotion to the post of Assistant
Accountant, whereas respondent No.5 was promoted vide order dated
14.09.2005. He further contends that the adverse entries made in the ACRs were
never communicated to the petitioner. He also submits that the petitioner has
already retired from service. He would pray that the instant petition may be
allowed.
4) On the other hand, learned counsel appearing for respondents No.2, 3, and 4 submits
that respondent No.5 was promoted to the post of Assistant Accountant vide order
dated 14.09.2005. The first petition (WP No. 2012/2006) was disposed of vide order
dated 26.04.2006, whereas the petitioner's representation was rejected vide order
dated 07.10.2005. The petitioner preferred a second petition (WPS No. 5565/2018),
which was disposed of vide order dated 28.08.2018. The learned counsel contends
that the petitioner could not produce any document to substantiate his claim that the
ACRs from 2002-2005 were never communicated to him. She, therefore, argues that
the petition deserves to be dismissed.
5) Learned State counsel supports the submissions made by Ms. Diwan.
6) Heard learned counsel appearing for the respective parties and perused the
documents.
7) The petitioner filed this petition on 03.12.2018, after his retirement. Respondent
No.5 was promoted to the post of Assistant Accountant on 14.09.2005. WP No.
2012/2006, filed by the petitioner, was disposed of on 26.04.2006, but prior to its
disposal, his representation was rejected vide order dated 07.10.2005 by
respondent No.4. The petitioner preferred an appeal against the order dated
20.11.2006 before respondent No.2, but he has not pleaded specific provisions
under which the appeal was preferred against the rejection of his representation.
The appeal remained pending for a considerable period, and the petitioner filed
a writ petition in 2018 i.e. WPS No. 5565/2018 after 12 years. The appeal was
ultimately dismissed vide order dated 01.10.2018 on the ground that there were
adverse entries in the ACR for the years 2002-2005
8) In the present writ petition, the petitioner failed to demonstrate that the adverse
entries in the ACRs were never communicated to him. The petitioner should
have approached this Court immediately after the issuance of the promotion
order in favor of respondent No.5. Though in the earlier rounds of litigation,
directions were issued to decide the representation/appeal, but sight cannot lost
that there is an inordinate delay of 12 years in approaching this Court after the
rejection of the petitioner's representation.
9) In the matter of Bichitrananda Behera Vs. State of Orissa and others reported
in 2023 Livelaw (SC) 883, the Hon'ble Supreme Court held in para 21 as under:-
"21. Profitably, we may reproduce relevant passages from 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.
X X X
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) Taking into consideration the above discussed facts and the law laid down in
Bichitrananda Behera (supra), in my opinion, no case is made out for
interference. Accordingly, this writ petition fails and is hereby dismissed. No
order as to cost.
Sd/-
(Rakesh Mohan Pandey)
Judge
NADIM
