Himachal Pradesh High Court
Public Works Department vs State Of Orissa And Others on 13 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF DECEMBER, 2021
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BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 7384 OF 2021
Between:-
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SH. RAJINDER PAUL, S/O LATE
SH. HARBANS LAL, R/O VILLAGE
DHAINDA, POST OFFICE TOTU,
TEHSIL & DISTRICT SHIMLA,
H.P., RETIRED
SUPERINTENDENT GRADE-i, O/O
ENGINEER-UB-CHIEF, H.P.
PUBLIC WORKS DEPARTMENT,
US CLUB, SHIMLA-171 001.
...PETITIONER
(BY SH. M. C. VERMA & SH.
LALIT KUMAR SEHGAL,
ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL
SECRETARY (PWD) TO THE
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA-2.
2. THE ENGINEER-IN-CHIEF, H. P.
PUBLIC WORKS DEPARTMENT,
US CLUB, SHIMLA-1.
...RESPONDENTS
(SH. ASHOK SHARMA, A.G.
WITH SH. SHIV PAL MANHANS,
ADDL. A.GS. AND SH.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL.)
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This Petition coming on for orders this day, Hon'ble Mr. Justice
.
Tarlok Singh Chauhan, passed the following:-
ORDER
The petitioner who is currently more than 77 years of
age and had retired from the respondent-Department in the year
2002, has filed the instant petition for the grant of following
substantive relief:-
(I) That the order dated 14.08.2015, 15.10.2015 &
04.10.2016 rejecting the case of the petitioner for
promotion to the post of Registrar may kindly be
quashed and set aside and the respondents may
kindly be directed to reconsider the case of the
petitioner for promotion to the post of Registrar by
creating a supernumerary post since the petitioner
had already retired, as done for his promotion as
Superintendent Grade-I, without disturbing the
others, from the date of his junior was promoted with
all consequential benefits in the interest of justice
and fair play.
2. The petitioner was initially appointed as L. D. Clerk
on temporary basis in the HPPWD vide order dated 30.04.1964
and joined as such on 02.05.1964. In the year, 1973, the
petitioner passed departmental examination and thereafter was
promoted to the post of Sub-Divisional Clerk (SDC) on
24.10.1975, which was later on equated with the post of
Assistant. Thereafter, he was confirmed as Assistant vide order
dated 25.10.1989 w.e.f. 06.11.1985. Thereafter, the petitioner
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went on deputation with Shimla Development Authority and
Housing Board and subsequently repatriated to his parent
department on 31.03.2001. According to the petitioner, he has
wrongly been denied the seniority by the parent Department,
constraining him to file OA No. 2628 of 2001 before the learned
3.
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erstwhile Tribunal, seeking his promotion from the date his
juniors were promoted.
On abolition of the learned Tribunal, the petition was
transferred to this Court and disposed of vide judgment dated
04.05.2011, whereby the respondents are directed to examine
the matter on the basis of certain covered cases and grant same
and similar benefits, in case, the case of the petitioner is similar
situate.
4. The respondents assailed the judgment by filing LPA
No. 658 of 2011 and the same was disposed of on the basis that
the impugned judgment was conditional one whereby the
respondents had only been asked to examine the case.
5. The petitioner thereafter approached the Court by
filing contempt petition bearing COPC No. 161 of 2014.
6. The respondents filed their reply and have conceded
to claim of the petitioner being covered by the earlier judgment
rendered by this Court and resultantly the petition was disposed
of.
.
7. According to the petitioner, the judgment dated
02.06.2014 has not been complied with, constraining him to file
CMP No. 9933 of 2015, which was disposed of vide order dated
01.08.2016 on the statement of the petitioner that the judgment
dated 23.07.2014 stands complied with.
8.
In compliance to the judgment, the petitioner was
granted seniority as Assistant/Sr. Assistant by showing his date
of appointment as 02.05.1964 and thereafter the consequential
appointment was also granted to the petitioner as Grade-I w.e.f.
30.05.1997 against supernumerary post.
9. Since the juniors of the petitioner were promoted to
the post of Registrar, for which the petitioner had not been
considered despite being eligible, therefore, the petitioner filed a
representation with the respondents, which was forwarded to the
quarter concerned vide letter dated 25.11.2014, however, the
case of the petitioner was rejected vide order dated 14.08.2015,
but, the petitioner continued to represent but of no avail. Hence,
this petition.
I have heard learned counsel for the petitioner and
have gone through the material placed on record.
10. It is clearly established from the record that at the
time when the petitioner is now seeking to agitate the matter, he
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is already retired from service long back and, therefore, what
now he is trying to agitate is only a stale and dead issue.
11. It is more than settled that the issue of limitation or
delay and laches has to be considered with respect to the
original cause of action and not with reference to the date on
which an order has been passed in compliance to Court direction.
Neither a court's direction to consider representation issued
without examining the merit, nor a decision given in compliance
with such direction, will extend the limitation, or erase the delay
and latches.
12. It is more than settled that there has to be an
element of repose and a stale claim, more particularly to the
one related to seniority and promotion, cannot be resuscitated.
13. It is also beyond any cavil or doubt that the remedy
under article 226 of the Constitution of India is a discretionary
one. For sufficient or cogent reasons, the court may, in a given
case, refuse to exercise its jurisdiction; delay and laches being
one of them. While considering the question of delay and laches
on the part of the petitioner, the court must also consider the
effect thereof.
14. As regards the service matters, more particularly,
pertaining to seniority and promotion, the delay is to be strictly
.
construed or else it would amount to unsettling the settled
matters after a lapse of time. A person aggrieved by an order of
promotion should approach the Court at least within six months
or at the most a year of such promotion. It has been further held
that it is not that there is any period of limitation for the Courts
to exercise their powers under Article 226 nor is it that there can
never be a case where the Courts cannot interfere in a matter
after the passage of a certain length of time. But it would be a
sound and wise exercise of discretion for the Courts to refuse to
exercise their extraordinary powers under Article 226 of the
Constitution of India in the case of persons who do not approach
it expeditiously for relief and who stand by and allow things to
happen and then approach the Court to put forward stale claims
and try to unsettle matters.
15. 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.
16. It is settled law that fence-sitters cannot be allowed
to raise the dispute or challenge the validity of the order after its
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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. (Refer:
Mohapatra and others vs. State of Orissa and others,
(2010) 12 SCC 471).
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17. At this stage it shall be profitable to refer to the
following observations of the Hon'ble Supreme Court in Vijay
Kumar Kaul and others vs. Union of India and others,
(2012) 7 SCC 610 as under:
"[23] It is necessary to keep in mind that claim for the
seniority is to be put forth within a reasonable period of
time. In this context, we may refer to the decision of this
Court in P.S. Sadasivaswamy v. State of Tamil Nadu, 1974
AIR(SC) 2271, wherein a two-Judge Bench has held thus: -
"It is not that there is any period of limitation for
the Courts to exercise their powers under Article 226 nor
is it that there can never be a case where the Courts
cannot interfere in a matter after the passage of a certain
length of time. But it would be a sound and wise exercise
of discretion for the Courts to refuse to exercise their
extraordinary powers under Article 226 in the case of
persons who do not approach it expeditiously for relief
and who stand by and allow things to happen and then
approach the courts to put forward stale claims and try to
.
unsettle matters."
[24] In Karnataka Power Corporation Ltd. & Anr. v.
K. Thangappan & Anr., 2006 AIR(SC) 1581 this Court had
held thus that 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 Prasad v. Chief Controller of Imports
and Exports, 1970 AIR(SC) 769. Of course, the discretion
has to be exercised judicially and reasonably.
[25] In City Industrial Development Corporation v.
Dosu Aardeshir Bhiwandiwala & Ors., 2009 AIR(SC) 571
this Court has opined that one of the grounds for refusing
relief is that the person approaching the High Court is
guilty of unexplained delay and the laches. Inordinate
delay in moving the court for a Writ is an adequate
ground for refusing a Writ. The principle is that courts
exercising public law jurisdiction do not encourage
agitation of stale claims and exhuming matters where the
rights of third parties may have accrued in the
interregnum.
[26] From the aforesaid pronouncement of law, it is
manifest that a litigant who invokes the jurisdiction of a
court for claiming seniority, it is obligatory on his part to
come to the court at the earliest or at least within a
reasonable span of time. The belated approach is
impermissible as in the meantime interest of third parties
gets ripened and further interference after enormous
.
delay is likely to usher in a state of anarchy.
[27] The acts done during the interregnum are to
be kept in mind and should not be lightly brushed aside. It
becomes an obligation to take into consideration the
balance of justice or injustice in entertaining the petition
or declining it on the ground of delay and laches. It is a
matter of great significance that at one point of time
equity that existed in favour of one melts into total
insignificance and paves the path of extinction with the
passage of time."
18. A stale claim of getting promotional benefits
normally should not be entertained and reference in this regard
can conveniently be made to the judgment rendered by the
Hon'ble Supreme Court in State of Uttaranchal and another
vs. Shiv Charan Singh Bhandari and others, (2013) 12
SCC 179, wherein after considering the entire law on the
subject, it was held as under:
[27] We are absolutely conscious that in the case at hand
the seniority has not been disturbed in the promotional
cadre and no promotions may be unsettled. There may
not be unsettlement of the settled position but, a
pregnant one, the respondents chose to sleep like Rip Van
Winkle and got up from their slumber at their own leisure,
for some reason which is fathomable to them only. But
such fathoming of reasons by oneself is not countenanced
in law. Any one who sleeps over his right is bound to
suffer. As we perceive neither the tribunal nor the High
Court has appreciated these aspects in proper
perspective and proceeded on the base that a junior was
promoted and, therefore, the seniors cannot be denied
.
the promotion.
28. Remaining oblivious to the factum of delay and
laches and granting relief is contrary to all settled
principles and even would not remotely attract the
concept of discretion. We may hasten to add that the
same may not be applicable in all circumstances where
certain categories of fundamental rights are infringed.
But, a stale claim of getting promotional benefits
definitely should not have been entertained by the
tribunal and accepted by the High Court."
19. The legal position is well articulated by the Hon'ble
Supreme Court in its decision in Union of India and others vs.
Tarsem Singh, (2008) 8 SCC 648, wherein it was held as
under:
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 re-opening of the
issue would affect the settled rights of third parties, then
the claim will not be entertained. For example, if the issue
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relates to payment or re-fixation 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. In so far as the
consequential relief of recovery of arrears for a past
period, the principles relating to recurring/successive
wrongs will apply. As a consequence, 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.
20. It is by now settled principle of jurisprudence that a
right not exercised for a long time is non-existent. Even when
there is no limitation period prescribed by any statute relating to
certain proceedings, in such cases Courts have coined the
doctrine of laches and delays as well as doctrine of acquiescence
and non-suited the litigants who approached the Court belatedly
without any justifiable explanation for bringing the action after
unreasonable delay. Doctrine of laches is in fact an application of
maxim of equity "delay defeats equities".
21. This Court sees no reason to interfere with stale or
dead claim presented in these writ petitions relating to seniority
at this distance of time in view of the observations made in P.S.
Sadasivaswamy's case, wherein the Hon'ble Supreme Court has
guided that the matter of promotion and seniority should be
agitated without delay and at least within six months or one
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year from the date of accrual of cause of action. The
approach of the petitioner is found inordinately belated.
22. Adverting to the facts of this case, the only
explanation offered by the petitioner for not approaching this
Court within time, as contained in para-15, reads as under:-
"15. That it is respectfully submitted that the petitioner is
a patient of heart ailments and is not keeping good health
since long and is under treatment since long. The
petitioner due to his ill health could not approach this
Hon'ble Court earlier, though he had represented to the
respondents time and again. The petitioner is under the
bonafide belief that injustice has been done to him in the
matter of promotion to the post of Registrar, in the year
2021 had sought copies of the seniority lists of Assistants
and Superintendent Grade-II from the respondents and
the same were supplied to the petitioner in the month of
July, 2021 by the respondents and is thereafter
approaching this Hon'ble Court."
23. Even if the aforesaid averments are taken on the
face value, even then, the petitioner is guilty of delay and laches
in approaching this Court.
24. Since, the writ petition is being disposed of on the
ground of delay and laches, the merits of the case need not be
gone into and the same is accordingly dismissed, leaving the
parties to bear their own costs. Pending application(s), if any,
also stands disposed of.
.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
th
13 December, 2021 Judge
Sanjeev
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