Kerala High Court
Sepoy Suresh Kumar G vs Union Of India on 8 August, 2025
W.P(C).No.41371 of 2024 1 2025:KER:58970
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
FRIDAY, THE 8
DAY OF AUGUST 2025 / 17TH SRAVANA,
1947
WP(C) NO. 41371 OF 2024
PETITIONER:
EPOY SURESH KUMAR G
S
AGED 57 YEARS
S/O LATE. M V GOPINATHAN PILLAI PANCHAMRITHAM,
KARUVATTA NORTH P.O, ALAPPUZHA DISTRICT,
KERALA, PIN - 690517
Y ADVS.
B
SHRI.RATHEESH B.
SHRI.GYOTHISH CHANDRAN
RESPONDENTS:
1
NION OF INDIA
U
REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE,
SOUTH BLOCK, NEW DELHI, PIN - 110011
2
HE CHIEF OF ARMY STAFF
T
INTEGRATED HEAD QUARTERS OF MOD (ARMY), SOUTH BLOCK,
NEW DELHI, PIN - 110011
3
RINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS)
P
OFFICE OF THE PCDA(P), DRAUPATI GARH, ALLAHABAD
W.P(C).No.41371 of 2024 2 2025:KER:58970
PIN - 211014
4
ECORD OFFICER
R
RECORDS THE MADRAS REGIMENT, C/O 56 APO,
PIN - 900458
BY ADV SRI.C.DINESH, CGC
HIS
T WRIT
PETITION
(CIVIL)
HAVING
BEEN
FINALLY
HEARD
ON
29.07.2025,
THE
COURT ON 08.08.2025 DELIVERED THE
FOLLOWING:
W.P(C).No.41371 of 2024 3 2025:KER:58970
JUDGMENT
Sushrut Arvind Dharmadhikari, J.
Heard finally with the consent of both the parties.
2. The present writ petition under Article 226 of the
Constitution of India has been filed challenging the Ext.P3
order dated 22.08.2023 passed by the Armed Forces Tribunal
(AFT), Regional Bench, Kochi inO.A.No.236 of 2021.
3.Thebrieffactsofthecasearethatthepetitionerwasan
ExSepoywithNo.2591079N,whowasrecruitedintheArmyon
13.06.1986. He was declared as a deserter on 29.10.1993 and
disciplinary proceedings were initiated against him. He was
dismissed from service on 20.04.2004 for his absence from
W.P(C).No.41371 of 2024 4 2025:KER:58970
service.Beingaggrieved,thewifeofthepetitionerhadmadea
correspondence praying for grant of disability pension which
was rejected by the respondents.
4. The learned counsel for the petitioner submittedthat
though the petitioner was in a low medical category, the
MedicalBoardwasnotconvincedbecausehehadbeendeclared
adeserter.Thelearnedcounselforthepetitionerfurtherstated
that no procedure was adopted as per Rule 17 of the Army
Rules,therefore,thedismissalofthepetitionerwasvitiatedby
proceduralirregularities.Insuchcircumstances,thepetitioner
had prayed for reinstatement in service at least provisionally
subject to the outcome of the Medical Board. The petitioner
had rendered 7 years 4 months and 17 days of qualifying
W.P(C).No.41371 of 2024 5 2025:KER:58970
service. Subsequently, he was dismissed from service with
effectfrom20.04.2004,ashehadbeenadeserterformorethan
10years.Thelearnedcounselforthepetitionersubmittedthat
the dismissal of the petitioner was effectedwithoutfollowing
the due procedure of law and therefore, prayed that the writ
petition be allowed and the petitioner be reinstated in service.
5. Per contra the learned Central Government Counsel
appearing for the respondents vehemently opposed the afore
prayer and submitted that the learned Tribunal ought not to
havegoneintothemeritsofthecase,sincethepetitionerwas
dismissed from service on 20.04.2004. Thereafter he did not
choose to file a representation or approach the learned
Tribunal for the last 17 years. The wife of the petitioner had
W.P(C).No.41371 of 2024 6 2025:KER:58970
preferredarepresentationwhichwasdismissed.Thereafterthe
petitioner approached the Tribunal in the year 2021 by filing
theOriginalApplication.OnperusaloftheOriginalApplication,
no reasons have been shown for the inordinate delay of 17
yearsinapproachingtheTribunal.ThelearnedTribunalapart
fromconsideringthemeritsofthecase,dismissedtheOriginal
Applicationonthegroundofinordinatedelayof17years.The
Hon'ble Apex Court has clearly held that preferring
representation after a long gap of time and that having been
consideredbytheauthorities,wouldnotbringthecasewithin
limitation.Therefore,nointerferenceiscalledforintheorder
passedbythelearnedTribunal.He,therefore,prayedthatthis
writ petition be dismissed.
W.P(C).No.41371 of 2024 7 2025:KER:58970
6. Heard thelearnedcounselforthepartiesandperused
the records.
7.Inthepresentcase,thepetitionerhadapproachedthe
learned Tribunal after a period of 17 years for which no
plausibleexplanationhasbeenputforthforsuchahugedelay.
Therefore,the OriginalApplicationaswellasthiswritpetition
suffersfrominordinatedelayandlaches.ThelearnedTribunal
hasrightlydismissedtheOriginalApplicationonthegroundof
delay.
8.Wewouldnotliketodwelluponthemeritsofthecase
asdonebythelearnedTribunal;however,wewouldliketodeal
with the preliminary objections with regard to delay and
laches. The crux of the matter is that the service of the
W.P(C).No.41371 of 2024 8 2025:KER:58970
petitioner was terminated in theyear2004andthepetitioner
hadapproachedtheTribunalafter17yearsaswellasthisCourt
after 20 long years. It is wellestablishedprincipleoflawthat
delay defeats equity.
9. The learned Supreme Court in the case of Karnataka
Power Corpon. Ltd. Vs. K. Thangappan reported in (2006) 4SCC
322has held as under :
6 .Delayorlachesisoneofthefactorswhichistobebornein
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 toinvoke
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
wherefundamentalrightisinvolvedthematterisstillwithin
the discretion oftheCourtaspointedoutinDurgaPrashadv.
ChiefControllerofImportsandExports.Ofcourse,thediscretion
has to be exercised judicially and reasonably.
W.P(C).No.41371 of 2024 9 2025:KER:58970
7 . What was stated in this regard by Sir Barnes Peacock in
LindsayPetroleumCo.v.ProsperArmstrongHurd(PCatp.239)was
approved by this Court in Moon Mills Ltd. v. M.R. Meher and
Maharashtra SRTC v. Shri Balwant Regular Motor Service. Sir
Barneshad stated:
"Now, the doctrine of laches in courts of equity is not an
arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy eitherbecausetheparty
has,byhisconductdonethatwhichmightfairlyberegarded
as equivalent to a waiver of it, or where byhisconductand
neglect he has thoughperhapsnotwaivingthatremedy,yet
put the other party in a situation in which it would not be
reasonable to placehimiftheremedywereafterwardstobe
asserted,ineitherofthesecases,lapseoftimeanddelayare
most material. But in every case, if an argument against
relief, which otherwise would be just,isfoundeduponmere
delay, that delay of course not amounting to a bar by any
statute of limitation, the validity of that defence must be
tried upon principles substantially equitable. Two
circumstancesalwaysimportantinsuchcasesare,thelength
of the delay and the nature of the acts done during the
interval whichmightaffecteitherpartyandcauseabalance
ofjusticeorinjusticeintakingtheonecourseortheother,so
far as it relates to the remedy."
8 . It would be appropriate to note certain decisions of this
Court in which thisaspecthasbeendealtwithinrelationto
Article 32 of the Constitution. It is apparent that what has
been stated as regardsthatarticlewouldapply,afortiori,to
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rticle 226. It was observed in Rabindranath Bose v. Union of
A
India that no relief can be given to the petitioner who
without any reasonable explanation approaches this Court
under Article 32 after inordinate delay. It was stated that
though Article 32 is itself a guaranteed right, it does not
follow from this that it was the intention of the
Constitution-makers that this Court should disregard all
principles and grant relief in petitionsfiledafterinordinate
delay.
9. It was statedinStateofM.P.v.NandlalJaiswalthattheHigh
Court in exercise of its discretion does not ordinarily assist
the tardy and the indolent or the acquiescent and the
lethargic. If there is inordinate delay on the part of the
petitioner and such delay isnotsatisfactorilyexplained,the
High Court may decline to intervene and grant relief in
exerciseofitswritjurisdiction.Itwasstatedthatthisruleis
premised on a number of factors. The High Court does not
ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public
inconvenience and bring, in its train new injustices, and if
writjurisdictionisexercisedafterunreasonabledelay,itmay
have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was
pointed out that when writ jurisdiction is invoked,
unexplained delay coupled with the creation of third-party
rights in the meantime is an important factor which also
weighs with the High Court in deciding whether or not to
exercise such jurisdiction.
W.P(C).No.41371 of 2024 11 2025:KER:58970
TheSupremeCourtinthecaseofM.P.RamMohanRajaVs.
State of T.N. Reported in (2007) 9 SCC 78has heldas under :
1 1. So far as the question of delay is concerned, no
hard-andfastrulecanbelaiddownanditwilldependonthe
facts of each case. In the present case, the factsstareatthe
face of it that on 8-10-1996 an order was passed by the
CollectorinpursuanceoftheorderpassedbytheHighCourt,
rejecting the application of the writ petitioner for
consideration of the grant of mining lease. The writ
petitionersattightoverthematteranddidnotchallengethe
same up to 2003. This on the face of it appears to be very
serious.Apersonwhocansittightforsuchalongtimeforno
justifiable reason, cannot be given any benefit.
The Supreme Court in the case of Shiv DassVs.Unionof
India reported in (2007) 9 SCC 274has held as under:
6 .Normally,inthecaseofbelatedapproachwritpetitionhas
to be dismissed. Delay or laches is one of the factors to be
borne in mind by the High Courts when they exercise their
discretionarypowersunderArticle226oftheConstitutionof
India. In an appropriate case the High Court may refuse to
invokeitsextraordinarypowersifthereissuchnegligenceor
W.P(C).No.41371 of 2024 12 2025:KER:58970
mission on the part of the applicant to assert his right as
o
taken in conjunction with the lapse of time and other
circumstances, causes prejudice to the opposite party. Even
wherefundamentalrightisinvolvedthematterisstillwithin
the discretion oftheCourtaspointedoutinDurgaPrashadv.
ChiefControllerofImportsandExports.Ofcourse,thediscretion
has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in
LindsayPetroleumCo.v.ProsperArmstrongHurd,PCatp.239was
approved by this Court in Moon Mills Ltd. v. M.R. Meher and
Maharashtra SRTC v. Balwant Regular Motor Service. Sir Barnes
had stated:
"Now the doctrine of laches in courts of equity is not an
arbitraryortechnicaldoctrine.Whereitwouldbepractically
unjust to give a remedy either becausethepartyhas,byhis
conduct done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct and
neglect he has thoughperhapsnotwaivingthatremedy,yet
put the other party in a situation in which it would not be
reasonable to placehimiftheremedywereafterwardstobe
asserted,ineitherofthesecases,lapseoftimeanddelayare
most material. But in every case, if an argument against
relief, which otherwise would be just, iffoundeduponmere
delay, that delay of course not amounting to a bar by any
statute of limitation, the validity of that defence must be
tried upon principles substantially equitable. Two
circumstancesalwaysimportantinsuchcasesare,thelength
of the delay and the nature of the acts done during the
W.P(C).No.41371 of 2024 13 2025:KER:58970
i nterval whichmightaffecteitherpartyandcauseabalance
ofjusticeorinjusticeintakingtheonecourseortheother,so
far as relates to the remedy."
8. It was stated in State of M.P. v. Nandlal Jaiswal that the
High Court in exercise of its discretion does not ordinarily
assist the tardy and the indolentortheacquiescentandthe
lethargic. If there is inordinate delay on the part of the
petitioner and such delay isnotsatisfactorilyexplained,the
High Court may decline to intervene and grant relief in
exerciseofitswritjurisdiction.Itwasstatedthatthisruleis
premised on a number of factors. The High Court does not
ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public
inconvenience and bring in its train new injustices, and if
writjurisdictionisexercisedafterunreasonabledelay,itmay
have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was
pointed out that when writ jurisdiction is invoked,
unexplained delay coupled with the creation of third-party
rights in the meantime is an important factor which also
weighs with the High Court in deciding whether or not to
exercise such jurisdiction.
The Supreme Court in the case of Nadia Distt. Primary
SchoolCouncilVs.SristidharBiswarreportedin(2007)12SCC779
has held as under :
W.P(C).No.41371 of 2024 14 2025:KER:58970
1 1. In the present case, the panel was prepared in 1980 and
the petitioners approached the court in 1989 after the
decisioninDibakarPal.Suchpersonsshouldnotbegivenany
benefitbythecourtwhentheyallowedmorethannineyears
to elapse. Delay is very significant in matters of granting
relief and courts cannot come to the rescue of the persons
who are not vigilant of their rights. Therefore, the view
taken by the High Court condoning the delay of nine years
cannot be countenanced.
The Supreme Court in the case of U.P. Jal Nigam Vs.
Jaswant Singh reported in (2006) 11 SCC 464has heldas under :
1 2. The statement of law has also been summarised in
Halsbury's Laws of England, para 911, p. 395 as follows: "In
determiningwhethertherehasbeensuchdelayastoamount
to laches, the chief points to be considered are:
(i)acquiescenceontheclaimant'spart;and(ii)anychangeof
position that has occurred on the defendant's part.
Acquiescence in this sense doesnotmeanstandingbywhile
the violation of a right is in progress, but assent after the
violation has been completed and the claimant has become
aware ofit.Itisunjusttogivetheclaimantaremedywhere,
by his conduct, he has done that which might fairly be
regarded as equivalent to a waiver of it; or where by his
conduct andneglect,thoughnotwaivingtheremedy,hehas
put the other party in a position in which it would not be
W.P(C).No.41371 of 2024 15 2025:KER:58970
r easonable to placehimiftheremedywereafterwardstobe
asserted. In such cases lapse of time and delay are most
material. Upon these considerations rests the doctrine of
laches."
The Supreme Court inthecaseofJagdishLalVs.Stateof
Haryana reported in (1997) 6 SCC 538has held as under:
1 8. That apart, as this Court has repeatedly held, the delay
disentitles thepartytothediscretionaryreliefunderArticle
226or Article 32 of the Constitution.
The Supreme Court in the case of NDMC Vs. Pan Singh
reported in (2007) 9 SCC 278has held as under :
1 6. There is another aspect of the matter which cannot be
lost sight of. The respondents herein filed a writ petition
after 17 years. They did not agitate their grievances for a
long time. They, asnoticedherein,didnotclaimparitywith
the 17 workmen at the earliest possible opportunity. They
did not implead themselves as parties even inthereference
made by the State before the Industrial Tribunal. It is not
their case that after 1982, those employees who were
employed or who were recruited after the cut-off datehave
been granted the said scale of pay. After such a long time,
W.P(C).No.41371 of 2024 16 2025:KER:58970
t herefore,thewritpetitionscouldnothavebeenentertained
even if they are similarly situated. It is trite that the
discretionary jurisdiction may not be exercised in favour of
those who approach the court after a long time. Delay and
laches are relevant factors for exercise of equitable
jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal
Nigam v.JaswantSinghandKarnatakaPowerCorpn.Ltd.
v. K. Thangappan.)
17. Although, there is no period of limitation provided for
filing awritpetitionunderArticle226oftheConstitutionof
India, ordinarily, writ petition should be filed within a
reasonable time. (See Lipton IndiaLtd.v.UnionofIndiaand
M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court held: (SCC p.
277,paras 9-10)
"9.IthasbeenpointedoutbythisCourtinanumberofcases
that representations would not be adequate explanation to
take care of delay. This was first stated in K.V.Rajalakshmiah
Setty v. State ofMysore.Thereisalimittothetimewhichcan
be considered reasonable for making representations and if
the Government had turned down one representation the
making of another representation on similar lines will not
explain the delay. In State of Orissa v. Pyarimohan
Samantaray making of repeated representations was not
regardedassatisfactoryexplanationofthedelay.Inthatcase
the petition had been dismissed for delay alone. (See also
State of Orissa v. Arun Kumar Patnaik).
W.P(C).No.41371 of 2024 17 2025:KER:58970
1 0. In the case of pension the cause of action actually
continues frommonthtomonth.That,however,cannotbea
ground to overlook delay in filing the petition. It would
depend uponthefactofeachcase.Ifpetitionisfiledbeyond
a reasonable period say three years normally the Court
would reject the same or restrict the relief which could be
grantedtoareasonableperiodofaboutthreeyears.TheHigh
Courtdidnotexaminewhetheronmerittheappellanthada
case.Ifonmeritsitwouldhavefoundthattherewasnoscope
forinterference,itwouldhavedismissedthewritpetitionon
that score alone."
19.We,therefore,areoftheopinionthatitwasnotafitcase
wheretheHighCourtshouldhaveexerciseditsdiscretionary
jurisdiction in favour of the respondents herein.
The Supreme Court in the case of State of Orissa v.
PyarimohanAmantarayreportedin(1977)3SCC396 hasheldas
under :
6 . It would thus appear that there is justification for the
argument of the Solicitor-General that even though a cause
of action arose to the petitioner as far back as 1962, on the
rejection of his representation on November 9, 1962, he
allowed some eleven years to go by before filing the writ
petition. There is no satisfactory explanation of the
inordinate delay for, as has been held by this Court in
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abindra Nath Bose v. Union of India the making of repeated
R
representations, after the rejection of one representation,
could not be held to be a satisfactory explanation of the
delay.Thefactthereforeremainsthatthepetitionerallowed
some yearstogobybeforemakingapetitionfortheredress
of his grievances. In the meantime a number of other
appointments were also made to the Indian Administrative
Service by promotion from the State Civil Service, some of
the officers received promotions to higher posts in that
service and may even have retired. Those who continuedto
servecouldjustifiablythinkthatastherewasnochallengeto
their appointments within the period prescribed for a suit,
they could look forward to further promotion and higher
terminal benefits on retirement. The High Court therefore
erredinrejectingtheargumentthatthewritpetitionshould
be dismissed because of the inordinate and unexplained
delay even though it was "strenuously" urged for its
consideration on behalf of the Government of India.
TheSupremeCourtinthecaseofStateofOrissav.Arun
Kumar Patnaik reported in (1976) 3 SCC 579 has held as
under:
1 4 . It is unnecessary to deal at length with the State's
contention that the writ petitions were filed in the High
W.P(C).No.41371 of 2024 19 2025:KER:58970
ourt after a long delay and that the writ petitioners are
C
guilty of laches. We have no doubt that Patnaik and Mishra
brought to the court a grievance too stale to merit redress.
Krishna Moorthy's appointment was gazetted on March 14,
1962 and it is incredible that his service-horoscope was not
known to his possible competitors. On November 15, 1968
theywereallconfirmedasAssistantEngineersbyacommon
gazette notification and that notification showed Krishna
Moorthy's confirmation as of February 27, 1961 and that of
the other two as of May 2, 1962. And yet till May 29, 1973
when the writ petitions were filed, the petitioners did
nothingexcepttofilearepresentationtotheGovernmenton
June 19, 1970 and a memorial to the Governor on April 16,
1973.TheHighCourtmadelightofthislongandinexplicable
delaywithacasualremarkthatthecontentionwas"without
any force". It overlooked that in June, 1974 it was setting
asideanappointmentdatedMarch,1962ofapersonwhohad
in the meanwhile risen to the rank of a Superintending
Engineer. Those 12 long years were as if writ in water. We
cannot but express our graveconcernthatanextraordinary
jurisdiction should have been exercised in such an abject
disregardofconsequencesandinfavourofpersonswhowere
unmindful of their so-called rights for many long years.
TheSupremeCourtinthecaseofBSNLv.GhanshyamDass
reported in (2011) 4 SCC 374has held as under :
W.P(C).No.41371 of 2024 20 2025:KER:58970
2 6. On the other hand, where only the affected parties
approach the court and relief is given to those parties, the
fence-sitters who did not approach the court cannot claim
that such relief should have been extendedtothemthereby
upsettingorinterferingwiththerightswhichhadaccruedto
others.
27. In Jagdish Lal v. State ofHaryana,theappellantswhowere
general candidates belatedly challenged the promotion of
ScheduledCasteandScheduledTribecandidatesonthebasis
of the decisions inAjit Singh Januja v.StateofPunjab,Unionof
India v. Virpal Singh Chauhan and R.K. Sabharwal v. State of
Punjab and this Court refused to grant the relief saying:
(JagdishLalcase,SCCpp.562-63,para18)"18....thisCourthas
repeatedly held, the delay disentitles the party to the
discretionary relief under Article 226 or Article 32 of the
Constitution.Itisnotnecessarytoreiterateallthecatenaof
precedents in this behalf. Suffice it to state that the
appellants kept sleeping over their rights for long and
elected to wake up when they had the impetus from Virpal
Chauhan and Ajit Singh ratios. But Virpal Chauhan and
Sabharwal cases, kept at rest the promotionalreadymadeby
that date, and declared them as valid; they were limited to
thequestionoffuturepromotionsgivenbyapplyingtherule
of reservation to all the persons prior to the date of
judgment in Sabharwal case which required tobeexamined
in the light of the law laid in Sabharwal case. Thus earlier
promotions cannot be reopened. Only those cases arising
afterthatdatewouldbeexaminedinthelightofthelawlaid
W.P(C).No.41371 of 2024 21 2025:KER:58970
owninSabharwalcaseandVirpalChauhancaseandequally
d
Ajit Singh case. If the candidate has already been further
promoted to the higher echelons of service, his seniority is
not open to be reviewed. In A.B.S. Karamchari Sangh case a
Bench of two Judges to which two of us,K. Ramaswamy and
G.B. Pattanaik, JJ. were members, had reiterated the above
view and it was also held that all the prior promotions are
notopentojudicialreview.InChanderPalv.StateofHaryanaa
Bench of two Judges consisting of S.C. Agrawal and G.T.
Nanavati,JJ.consideredtheeffectofVirpalChauhan,AjitSingh,
SabharwalandA.B.S.KaramchariSanghcasesandheldthatthe
seniority of those respondents who had already retired or
had been promoted to higher posts could not be disturbed.
The seniority of the petitioner therein and the respondents
who were holding the post in the same level or inthesame
cadre would be adjusted keeping in view the ratio in Virpal
Chauhan andAjitSingh;butpromotion,ifany,hadbeengiven
toanyofthemduringthependencyofthiswritpetitionwas
directed not to be disturbed."
The Supreme Court in the case of Ghulam Rasool Lone v.
State of J&K reported in (2009) 15 SCC 321has heldas under:
2 2 . If at this late juncture the petitioner is directed to be
promoted to the post of Sub-Inspector even above Abdul
Rashid Rather, the seniority of those who had been
promoted in the meantime or have been directly recruited
W.P(C).No.41371 of 2024 22 2025:KER:58970
ouldbeaffected.TheStatewouldalsohavetopaytheback
w
wages to him which would be a drainage of public funds.
Whereas an employee cannot be denied his promotion in
terms of the rules, the same cannot be granted out of the
way as a result whereof the rights of third parties are
affected. The aspect of public interest as also the general
administration must, therefore, be kept in mind while
granting equitable relief.
23. We understand that there would be a heart burning
insofar as the petitioner is concerned, but then he is to
thank himself therefor. If those five persons, who were
seniors to HamiddulahDarfiledwritpetitionsimmediately,
the High Court might have directed cancellation of his
illegal promotion. This Court in Maharaj Krishan Bhatt did
not take into consideration all these aspects of the matter
and the binding decision of a three-Judge Bench of this
Court in Govt. of W.B. v. Tarun K. Roy. The Division Bench of
the High Court, therefore, in our opinion was right in
opining that it was not necessary for it to follow Maharaj
Krishan Bhatt.
The Supreme Court in the case of P.S. Sadasivaswamy v.
State of T.N., reported in (1975) 1 SCC 152has heldas under :
" 2. ... Apersonaggrievedbyanorderofpromotingajunior
over his head should approach theCourtatleastwithinsix
months or at the most a year of such promotion. It is not
W.P(C).No.41371 of 2024 23 2025:KER:58970
t hat 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 thenapproachtheCourttoput
forward stale claims and try to unsettle settled matters."
10. The Supreme Court in the case of Administrator of
Union Territory of Daman and Diu and others v. R.D. Valand
reported in 1995 Supp (4) 593has held as under:-
" 4. WeareoftheviewthattheTribunalwasnotjustifiedin
interfering with the stale claim of the respondent. He was
promoted to the post of Junior Engineer in the year 1979
with effect from 28-9-1972. A cause of action, if any, had
arisentohimatthattime.Hesleptoverthemattertill1985
when he made representation to the Administration. The
said representation was rejected on 8-10-1986. Thereafter
for four years the respondent did not approach any court
and finally he filed the present application before the
W.P(C).No.41371 of 2024 24 2025:KER:58970
ribunal in March, 1990. In the facts and circumstances of
T
this case,theTribunalwasnotjustifiedinputtingtheclock
back by more than 15 years. The Tribunal fell into patent
error in brushing aside the question of limitation by
observing that the respondent has been making
representationsfromtimetotimeandassuchthelimitation
would not come in his way."
11. It is well established principle of law that inoldand
stale cases the court should not even pass an order directing
the respondents to decide the representation and even if any
representationisdecidedonsuchdirection,stillthesaidorder
will not give rise to any new cause of action.
12.TheSupremeCourtinthecaseofStateofUttaranchal
v.ShivCharanSinghBhandarireportedin(2013)12SCC179has
held as under :
1 9. From the aforesaid authorities it is clear as crystalthat
even if the court or tribunal directs for consideration of
W.P(C).No.41371 of 2024 25 2025:KER:58970
r epresentationsrelatingtoastaleclaimordeadgrievanceit
does notgiverisetoafreshcauseofaction.Thedeadcause
of action cannot rise like a phoenix. Similarly, a mere
submission of representation to the competent authority
does not arrest time.
* * * *
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 thatthesamemaynotbeapplicable
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 TribunalandacceptedbytheHigh
Court.
The Supreme Court in the case of C. Jacob v. Director of
Geology and Mining reported in (2008) 10 SCC 115 has held as
under :
" 10.EveryrepresentationtotheGovernmentforrelief,may
not be replied on merits. Representations relating to
matters which have become stale or barred by limitation,
canberejectedonthatgroundalone,withoutexaminingthe
merits of the claim. In regard to representations unrelated
totheDepartment,thereplymaybeonlytoinformthatthe
W.P(C).No.41371 of 2024 26 2025:KER:58970
atter did not concern the Department or to inform the
m
appropriate Department. Representations with incomplete
particulars may be replied by seeking relevant particulars.
The replies to such representations, cannot furnish a fresh
cause of action or revive a stale or dead claim."
The Supreme Court in the case of Union of India v. M.K.
Sarkar reported in (2010) 2 SCC 59has held as under:
" 15. When a belated representation in regard toa'stale'or
'dead' issue/dispute is considered and decided, in
compliance with a direction by thecourt/tribunaltodoso,
thedateofsuchdecisioncannotbeconsideredasfurnishing
a fresh cause of action for reviving the 'dead' issue or
time-barred dispute. The issue of limitation or delay and
laches should be considered with reference to the original
causeofactionandnotwithreferencetothedateonwhich
an order is passed in compliance with a court's direction.
Neither a court's direction to consider a representation
issuedwithoutexaminingthemerits,noradecisiongivenin
compliance with such direction, will extend the limitation,
or erase the delay and laches."
The Supreme Court in the case of State of T.N. v.
Seshachalam reported in (2007) 10 SCC 137has heldas under :
W.P(C).No.41371 of 2024 27 2025:KER:58970
" 16. ... filing of representations alone would not save the
period oflimitation.Delayorlachesisarelevantfactorfor
a court oflawtodeterminethequestionastowhetherthe
claim made by an applicant deserves consideration. Delay
and/or laches on the part of a government servant may
deprive himofthebenefitwhichhadbeengiventoothers.
Article 14 of the Constitution of India would not, in a
situation of that nature, be attracted as it is well known
that law leans in favour of those who are alert and vigilant."
TheSupremeCourtinthecaseofUnionofIndiaandothers
v. Chaman Rana reported in (2018) 5 SCC 798has heldas under:-
" 10. Mere repeated filing of representations could not be
sufficient explanation for delay in approaching the Court
for grant of relief, was considered in Gandhinagar Motor
Transport Society v. Kasbekar [Gandhinagar Motor Transport
Societyv.Kasbekar,1953SCCOnLineBom64:AIR1954Bom202],
byChagla,C.J.observingasfollows:(SCCOnLineBom:AIRp.203,
para 2)
"2....Now,wehavehadoccasiontopointoutthattheonly
delaywhichthisCourtwillexcuseinpresentingapetition
is the delay which is caused by the petitioner pursuing a
legal remedywhichisgiventohim.Inthisparticularcase
the petitioner did not pursue a legal remedy.Theremedy
hepursuedwasextra-legalorextra-judicial.Oncethefinal
decision of the Government is given, a representation is
W.P(C).No.41371 of 2024 28 2025:KER:58970
erely a n appeal for mercy or indulgence, but it is not
m
pursuing a remedy which the law gave to the petitioner. ..."
In view of the aforesaid legal pronunciation by the
Hon'ble Apex Court, we are not inclined to interferewiththe
order passed by the learned Tribunal on merits as well as on
delay and laches. Accordingly, this writ petition is dismissed.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
MC/6.8
W.P(C).No.41371 of 2024 29 2025:KER:58970
APPENDIX OF WP(C) 41371/2024
PETITIONER EXHIBITS
Exhibit P1
RUE
T COPY OF
MEMORANDUM OF
O.A. 236
OF
2021
ONTHEFILES OFARMEDFORCE TRIBUNAL
REGIONAL
BANCH KOCHI ALONG WITH ALL
ANNEXURE
Exhibit P2
TRUE
COPY OF
THE REPLY STATEMENT ALONG
WITH
ALL
ANNEXURE IN
OA
NO.
236 OF
2021
ON
THE FILES OF ARMED FORCE TRIBUNAL
REGIONAL BENCH KOCHI
Exhibit P3
TRUE
COPY OF
THE
ORDER DATED 22.08.2023
IN
OA NO.236 OF
2021 ON THE FILES OF
ARMED FORCE TRIBUNAL REGIONAL BENCH KOCHI
Exhibit P4
TRUE
COPY OF THE NOTIFICATION NO.SO
5370(E) DATED 17.10.2018.
Exhibit P5
TRUE
COPY OFORDERDATED18.10.2023 INOA
NO.
111
OF 2022 IN
NAIK
GLADY WILLS VS.
UNION OF INDIA & ORS
