Chattisgarh High Court
Dr. Kala Nand Choudhary vs State Of Chhattisgarh on 8 September, 2025
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 2439 of 2024
Order reserved on 10/06/2025
Order delivered on 08/09/2025
1 - Dr. Kala Nand Choudhary S/o Late Shri Lakshman Choudhary, Aged
About 66 Years R/o SMIG- 28, Parijat Castle, Ring Road-2, Bilaspur, District-
Bilaspur ( C.G.).
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through- The Secretary, Health Department,
Mantralaya, Atal Nagar Nava Raipur, District- Raipur ( C.G.).
2 - CIMS Bilaspur, Through- The Dean, District- Bilaspur ( C.G.).
... Respondent(s)
(Cause-title taken from Case Information System)
For Petitioner(s) : Mr. Prateek Sharma, Advocate
For Respondent(s)/State : Mr. Suyashdhar Badgaiya, Deputy G.A.
Hon'ble Shri Justice Ravindra Kumar Agrawal
C.A.V. Order
1. The petitioner has filed the instant writ petition claiming the following
reliefs:-
(a) That, this Hon'ble Court may kindly be pleased to
direct the respondents to grant third time bound
VED payscale of 37400-67000 with paygrade of 8900 (Level
PRAKASH
DEWANGAN 16) to the petitioner from January 2019 and make
VED PRAKASH payment accordingly with 24% yearly interest and
pension be fixed accordingly, in the interest of justice.
(b) 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. Brief facts of the case are that the petitioner was appointed to the post
of Medical Officer on 11-01-1989. After successful completion of his
service tenure, he has been superannuated on 30-06-2023, from the
post of Medical Officer/Assistant Professor. During his service tenure,
he was granted the first-time bound pay scale of senior grade w.e.f.
01-01-2013 vide order dated 25-09-2014. Subsequently, he was
granted the second time-bound pay scale of selection grade w.e.f.
01-01-2019 vide order dated 17-04-2020. In the meantime, on
08-08-2018, the State Government issued a circular granting the third-
time-bound pay scale to the employees of Grades A, B, C and D, who
have completed 30 years of service from their initial date of
appointment and received only the two-time-bound pay scale. By the
circular dated 25-01-2021, the circular dated 08-08-2018 is amended,
and the employees of Grades A, B, C and D are made entitled to the
third-time-bound pay scale from the date of completion of 30 years of
their service. The petitioner is also claimed the third-time-bound pay
scale as per the circular dated 08-08-2018 and 25-01-2021 and made
his representations on 23-07-2021, 14-10-2022, and 20-06-2023, but
no benefit has been granted to him till date. Hence, this petition.
3. Learned counsel for the petitioner would submit that from the circular
dated 08-08-2018 and 25-01-2021, it is apparently clear that the
petitioner is entitled to the third time-bound pay scale. He was
appointed on 11-01-1989, through the selection process, and has
completed his 30 years of service in the year 2019. As per the circular,
after 2016, the benefits of the third time-bound pay scale are to be
extended to the employees. The State Government has introduced
one pay band in the year 2013 w.e.f. 01-04-2013, in which 04 time-
bound pay scales are to be provided to the employees after an interval
of 6 years. The petitioner was not provided with any benefit from 1989
till 2013. He was entitled to the first time-bound pay scale in the year
1999 and the second time-bound pay scale in the year 2009. During
the entire tenure, the petitioner got only the two-time-bound pay scale.
And therefore, as per the circular of the State Government, he is
entitled to the 04 time-bound pay scale.
4. Per contra, learned counsel for the state opposes and submits that, as
per the circular dated 08-08-2018, the employees, who have been
directly recruited, are entitled to the third time-pay scale after
completion of 30 years of service. Vide circular dated 01-04-2013,
there were separate provisions for sanctioning the four-tier pay scale
for Medical Specialist/Medical Officers, working under the Directorate
of Health Services, Chhattisgarh, in which, after completion of 6 years
of service, they would be given Senior Grade pay scale Matrix Level
13, after completion of further 6 years, they would be given Senior
Grade pay scale Matrix Level 14. Further completion of 6 years, they
would be given Senior Grade pay scale of Matrix Level 15, to the
extent of 2% of the total sanctioned posts. As per the circular dated
01-04-2013, the petitioner was also provided the benefit of Senior
Grade pay scale Matrix Level 13 vide order dated 17-04-2020 w.e.f.
01-01-2013, and Matrix Level 14 w.e.f. 01-01-2019. In the meantime,
further period of 6 years, the petitioner is superannuated on
30-06-2023; therefore, he could not be provided the Matrix Level 15
pay scale. He would further submit that the Matrix Level 16 pay scale
is to be provided for Medical Specialists; therefore, the same was not
provided to the petitioner. Therefore, the petitioner is not entitled to the
benefit of the circular dated 08-08-2018 as the benefit under the
circular dated 01-04-2013 has been extended to him, and he cannot
claim the benefit of both the circulars. The circular dated 01-04-2013 is
specially for the Medical Specialists/Medical officers/Dentists, working
under the Directorate, Health Services, Chhattisgarh. He would also
submit that the petitioner had joined service in the year 1989, and he
claimed the higher pay scale after his retirement. During his service
tenure, he has not claimed higher pay scale and therefore, the petition
also suffers from delay and laches and is liable to be dismissed.
5. I have heard learned counsel for the parties and perused the
documents annexed to the petition by the parties.
6. Admittedly, the petitioner was appointed in the year 1989 as a Medical
Officer under the Health Services. After bifurcation of the State, his
services are allocated to the State of Chhattisgarh. He is
superannuated on 30-06-2023. It is also not disputed that the
petitioner was provided first-time-bound pay scale vide order dated
25-09-2014 w.e.f. 01-01-2013, and vide order dated 17-04-2020
second-time-bound pay scale w.e.f. 01-01-2019. The said orders have
been issued in compliance of the circular dated 01-04-2013, which
was issued for Medical Specialists/Medical officers/Dentists, working
under the Directorate, Health Services, Chhattisgarh. The circular
dated 01-04-2013 is reproduced hereinbelow:-
"छत्तीसगढ़ शासन
स्वास्थ्य एवं परिवार कल्याण विभाग
मंत्रालय
महानदी भवन, नया रायपुर-492002
//आदेश//
रायपुर, दिनांक 01/04/2013
Øमांक एफ 1-10/2013/सत्रह एक राज्य शासन, एतद्द्वारा, संचालनालय, स्वास्थ्य सेवायें,
छत्तीसगढ़ के अंतर्गत कार्यरत विशेषज्ञ / चिकित्सा अधिकारी nUr fpfdRld सेवा संवर्ग के अधिकारियों को
दिनांक 01 जनवरी, 2013 से निम्नानुसार चार स्तरीय वेतनमान की स्वीकृ ति प्रदान करता है:-
विशेषK fpfdRlk अधिकारी/दन्त fpfdRld
स.क. Js.kh संवर्ग में स्वीकृ त सेवा अवधि संवर्ग में स्वीकृ त सेवा अवधि
वेतनमान वेतनमान
(1) (2) (3) (4) (5) (6)
1 कनिष्ठ श्रेणी 15600-39100 + - 15600-39100 + -
ग्रेड वेतन 6600 ग्रेड वेतन 5400
वेतनमान
2 वरिष्ठ श्रेणी 15600-39100 100 प्रतिशत 15600-39100 100 प्रतिशत
+ग्रेड वेतन 7600 ग्रेड वेतन 6600
वेतनमान कनिष्ठ श्रेणी कनिष्ठ श्रेणी
वेतनमान में 6 वर्ष वेतनमान में 6 वर्ष
की सेवा उपरांत की सेवा उपरांत
3 प्रवर श्रेणी 37400-67000 + 100 प्रतिशत 15600-39100 100 प्रतिशत
ग्रेड वेतन 8700 ग्रेड वेतन 7600
वेतनमान वरिष्ठ श्रेणी वरिष्ठ श्रेणी
वेतनमान में 6 वर्ष वेतनमान में 6 वर्ष
की सेवा उपरांत की सेवा उपरांत
4 वरिष्ठ प्रवर श्रेणी 37400-67000 कु ल पदों का 5 37400-67000 कु ल पदों का 2
ग्रेड वेतन 8900 ग्रेड वेतन 8700
वेतनमान प्रतिशत प्रवर श्रेणी प्रतिशत प्रवर श्रेणी
वेतनमान में 6 वर्ष वेतनमान में 6 सूर्य
की सेवा उपरांत की सेवा उपरांत
2/ राज्य के नक्सल प्रभावित जिलों (गृह विभाग द्वारा घोषित) में कार्यरत अधिकारियों को 6 वर्ष के स्थान
पर 04 वर्ष की सेवा अवधि पूर्ण करने पर उक्त वेतनमान देय होगा। इनdh सेवा अवधि की गणना उनके कार्यभार
ग्रहण की तिथि से की जायेगी।
3/ उक्त वेतनमान छानchन समिति की अनुशंसा पर नियोक्ता प्राधिकारी द्वारा स्वीकृ त किया जावेगा।
4/ उक्त osrनमान में चयन होने पर उनके drZO;ksa की प्रकृ ति में कोई परिवर्तन नहीं होगा तथा वे iwokZuqlkj
vkikr कर्तव्यों का निर्वहन करते रहेंगे।
5/ यह स्वीकृ ति वित्त विभाग के ;w-ओ. क्रमांक 89/एफ 1002164/विता/नियम/थार/2013, दिनांक
18.03.2013 द्वारा दी गई सहमति से जारी की जा रही है।
छत्तीसगढ़ के राज्यपाल के नाम से
तथा आदेशानुसार,
Sd/-
(अरुण कु मार चदि)
voj lfpo
छत्तीसगढ़ शासन स्वास्थ्य एवं परिवार कल्याण foHkkx"
7. The petitioner has not raised any objection when the first-time-bound
pay scale was granted to him vide order dated 25-09-2014 w.e.f.
01-01-2013, that he is entitled to higher pay scale, i.e. Senior Grade
pay scale from 1999 and Selection Grade pay scale from 2009. Even
after the grant of the first-time-bound pay scale w.e.f. 01-01-2013, he
has not raised any objection and has not claimed further benefit. When
he was granted second-time-bound pay scale vide order dated
17-04-2020 w.e.f. 01-01-2019, no objection was raised at that time,
also. It is only on 23-07-2021, he claimed the third-time-bound pay
scale on the basis that he has completed 30 years of service, and at
that time, the circular dated 08-08-2018 was effective, which reads as
under:-
"राज्य शासन द्वारा निर्णय लिया गया है कि शासकीय सेवकों को जमके पूर्ण शासकरिय
सेवाकाल में न्यूनतम तीन उच्च वैतममान उपलब्ध कराया जाए। अतः वित्त विभाग के
संदर्पित ज्ञापन दिनांक 26.4.2008 एवं 4.8.2010 के अनुसार प्रभावशील समयमान योजना
'को विस्तारित करते हुए वृत्तीय समयमान वेतन उपलब्ध कराने हेतु निम्नानुसार योजना
प्रभावशील की जाती है ।
1. राज्य की सिविल सेवाओं के जिन संवर्गों में सीधी भर्ती होती है उनमें "अ' 'ब' त एवं "द"
वर्ग की सिविल सेवाओं के सदस्यों को शासकीय सेवा में प्रथम नियुक्ति दिनांक से 30 वर्ष की
सेवा अवधि पूर्ण होने पर तीसरा समयमान वेतनमान देय होगा अर्थात् ऐसे शासकीय सेवक
जिन्हें शासकीय सेवा में नियुक्ति की तिथि से दौ पदोन्नति/क्रमोन्नति/समयमान वेतनमान का ही
लाभ प्राप्त हुआ है, को दिनांक 1.1.2016 अथवा इसके बाद की तिथि से 30 वर्ष की सेवा पूर्ण
करने पर तृतीय समयमान वेतनमान की पात्रता होगी। शासकीय सेवक की तीसरे समयमान
वेतनमान के लिये सेवा अवधि की गणना, प्रतियोगी/चयन परीक्षा के माध्यम से किसी सीधी
भर्ती के पद पर कार्यभार ग्रहण करने की तिथि से होगी।
2. राज्य शासन के ऐसे संवर्ग के शासकीय सेवक जिन्हें विशिष्ट योजनामा लाभका लाभ प्राप्त
है, को भी 30 वर्ष की सेवा के उपरांत तृतीय समयमान वेतनमान की पात्रता होगी परन्तु ऐसे
संवों को तृतीय समयमान वेतनमान देने के लिए मंत्रि-परिषद आदेश प्राप्त किया जाना
आवश्यक होगा।
3. राज्य शासन के ऐसे कर्मचारियों को जिनके मूल पद के वेतनमान का उन्नयत दिनांका
14.2006 एवं इसके पश्चात् किया गया है, की तृतीय समयमान वेतन की पात्रता के लिए
संशोधित वेतनमान में पूर्व नियुक्ति तिथि से काल्पनिक नियुक्ति मानी जाएगी।
4. विभिन्न वेतनमानों के लिए परिशिष्ट-1 के अनुसार तृतीय उच्चतर वेतन बैंड एवं पेक
बेतन/वेतन लेवल की पात्रता होगी। वित्त विभाग के ज्ञापन कमांश 97/107/वित्त/नियम/चार,
दिनांक 28.04.2008 एवं इसके क्रम में जारी निर्देशों की अन्य शर्ते तथा प्रक्रियाएं यथास्थिति
लागू रहेगी।"
8. The circular dated 08-08-2018 is amended on 25-01-2021 which reads
as under:-
"वित्त निर्देश 05/2021
छत्तीसगढ़ शासन
वित्त विभाग
मंत्रालय,
महानदी भवन, नवा रायपुर अटल नगर
Ø- 65/677/2020/वि/fu/चार नया रायपुर अटल नगर, fnukad 25 tuojh 2021
izfr]
शासन के समस्त विभाग
अध्यक्ष, राजस्व मण्डल, बिलासपुर
समस्त विभागाध्यक्ष
समस्त संभागायुक्त
समस्त कलेक्टर
छत्तीसगढ़
विषय:- छत्तीसगढ़ राज्य के सिविल सेवा के सदस्यों को तृतीय समयमान वेतन उपलब्ध कराने ckcr~
laदर्भ:- वित्त विभाग का ज्ञापन क्रमांक 401/एल 2018-71-00727/ वित्त /नियम/चार दिनांक
08.08.2018 (वित्त निर्देश 43/2018)
छत्तीसगढ़ राज्य की सिविल सेवाओं के सदस्यों को आगे बढ़ने के निश्चित अवसर उपलब्ध
कराये जाने हेतु वित्त विभाग के संदर्भित ज्ञापन दिनांक 08.08.2018 के द्वारा तृतीय समयमान वेतनमान
योजना प्रभावशील की गई है।
2/ शासन के संज्ञान में आया है कि उक्त ज्ञापन में उल्लेखित तृतीय समयमान वेतनमान योजना
की कं डिका-1 में ऐसे शासकीय सेवक जिन्हें शासकीय सेवा में नियुक्ति की तिथि से दो
पदोन्नति/कमोन्नति/समयमान वेतनमान का ही लाभ प्राप्त हुआ है, को दिनांक 01.01.2016 अथवा इसके
बाद की तिथि से 30 वर्ष की सेवा पूर्ण करने पर तृतीय समयमान वेतनमान की पात्रता होगी लेख होने के
कारण विभिन्न प्रकरणों में वेतन विसंगfr उत्पन्न हो रही है तथा शासकीय सेवकों को तृतीय समयमान
वेतनमान का लाभ प्राप्त नहीं हो पा रहा है।
3/ अr% राज्य शासन द्वारा छत्तीसगढ़ शासन वित्त विभाग के संदर्भित ज्ञापन दिनांक 08.08.
2018 (वित्त निर्देश 43/2018) में उल्लेखित तृतीय समयमान वेतनमान योजना की कं डिका- 1 को
निम्नानुसार संशोधित किये जाने का निर्णय लिया गया है:-
"1. राज्य के सिविल सेवाओं के जिन laoaxksZa में सीधी भर्ती होती है उनमें "अ" "c" स' एवं
"द" वर्ग की सिविल सेवाओं के सदस्यों को शासकीय सेवा में प्रथम नियुक्ति दिनांक से 30 वर्ष की सेवा
अवधि पूर्ण होने पर योजना के परिशिष्ट- अनुसार तृतीय उच्चतर समयमान वेतनमान की पात्रता दिनांक
1.1.2016 को अथवा इसके पश्चात् होगी। शासकीय सेवक की तीसरे समयमान वेतनमान के लिए सेवा
अवधि की गणना चयन/प्रतियोगी परीक्षा के माध्यम से किसी सीधी भर्ती के पद पर कार्यभार ग्रहण करने
की frfFk से होगी।
वित्त विभाग के संदर्मित परिषत्र में निहित अन्य प्रावधान यथावत लागू रहेंगे।
छत्तीसगढ़ के राज्यपाल के नाम से
तथा आदेशानुसार,
lgh@&
MkW- ,-ds- flag
la;qDr lfpo"
9. When the benefit of a higher pay scale/time-bound pay scale is
provided in order dated 01-04-2013 for Medical Specialists/Medical
officers/Dentists, working under the Directorate, Health Services,
Chhattisgarh, the petitioner cannot shift his benefit to another circular,
particularly when he benefited from the circular dated 01-04-2013.
Further, the benefit of 02 time-bound pay scale w.e.f. 01-01-2013
(Senior Grade pay scale) and 01-01-2019 (Selection Grade pay scale)
have already been provided to the petitioner. The petitioner has not
challenged the order dated 01-04-2013 and accepted the benefit of
first time-bound pay scale. The second-time-bound pay scale was also
provided to the petitioner under the circular dated 01-04-2013, which
has also been accepted by the petitioner. Before the third time-bound
pay scale, the petitioner retired from service and therefore, the benefit
of the same could not be extended to him. The circular dated
01-04-2013 is very clear about the grant of time-bound pay scale to
the Medical Officers in the regular interval of 6 years from the date of
grant of their earlier pay scale.
10. Another aspect of the matter is that till 2021, the petitioner had not
claimed the benefit of the higher pay scale. The claim of the petitioner
is that after completion of 20 years of service, he is entitled to a higher
pay scale in the years 1999 and 2009. Service service-related claim
cannot be raised after lapse of an inordinate delay, as held by the
Hon'ble Supreme Court in a catena of decisions. The Hon'ble
Supreme Court, in the matter of Bichitrananda Behera Vs. State of
Orissa and others, reported in 2023 (18) SCC 420, under relevant
para 27 to 30 held as under:-
"27. Profitably, we may reproduce relevant passages
from certain decisions of this Court:
28. Union of India v Tarsem Singh, (2008) 8 SCC 648:
"7. 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)
29. 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)
30. SBI 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 non- existent.
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 12-13)
"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." (emphasis supplied)"
11. In the present case, the conduct of the petitioner is evidence of his
intention to abandon an equitable right, having full knowledge and
express approbation, where a person has the right to set aside the
action, but no action taken which amounts to acceptance. Admittedly,
the petitioner has not challenged the earlier benefit of the first and
second time-bound pay scales that he is entitled to from 1999 and
2009, respectively. Laches, like acquiescence, is based upon equitable
consideration, but laches, unlike acquiescence, imports even simple
passivity. On the other hand, acquiescence implies active ascent and
is based upon the rule of estoppel.
12. In view of the above consideration, no case is made out for
interference. Consequently, the writ petition fails and is hereby
dismissed.
13. No order as to cost(s).
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
