Madhya Pradesh High Court

Shripatilal Jatav vs The State Of Madhya Pradesh on 23 March, 2021

Author: Gurpal Singh Ahluwalia

      THE HIGH COURT OF MADHYA PRADESH 1
                       WP 6670 of 2021
     Shripatilal Jatav and Anr. Vs. State of MP and Ors.

Gwalior, Dated :23/03/2021

         Shri Hemant Singh Rana, Counsel for the petitioners.

         Shri Abhishek Mishra, Panel Lawyer for the respondents/

State.

This petition under Article 226 of the Constitution of India

has been filed seeking the following reliefs:-

''(I) That, the respondent authorities may kindly be directed to give the benefit of payscale of Rs.515-800 w.e.f. 01/04/1982, the benefit of payscale of Rs.950-1530 w.e.f. 01/01/1986 and benefit of payscale of Rs.3050-4590 w.e.f. 01/01/1996 and subsequent revised pay-scales to the present petitioners in the interest of justice.

OR (II) The respondent authority may kindly be directed to decide the representation (Annexure P/1) of the petitioners in time bound manner with self- contained, well-reasoned speaking order in the interest of justice.

(III) That, cost of the petition may kindly be awarded to the petitioner.

Any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case same may kindly be granted to the petitioner.''

It is submitted by the Counsel for the petitioners that the

petitioners were appointed as Timekeepers and this Court by

order dated 27/06/2012 passed in the case of A.L. Thakur and

Others vs. The State of MP and Others [Writ Petition

No.16054/2003] has held that the Timekeepers are entitled for the

benefit of pay scale of Rs.515-800 w.e.f. 01/04/1982, the benefit THE HIGH COURT OF MADHYA PRADESH 2 WP 6670 of 2021 Shripatilal Jatav and Anr. Vs. State of MP and Ors.

of pay scale of Rs.950-1530 w.e.f. 01/01/1986 and benefit of pay

scale of Rs.3050-4590 w.e.f. 01/01/1996 and accordingly, the

respondents be directed to revise and refix their salary as well as

calculate the entire arrears of salary. It is submitted by the

Counsel for the petitioners that the petitioners are entitled for the

similar relief which was granted in the case of A.L.Thakur

(supra). It is submitted that the petitioners have retired in the

year 2009.

Per contra, the petition is vehemently opposed by the

Counsel for the State. It is submitted that the judgment passed in

the case of A.L.Thakur (supra) is not applicable to the

Timekeepers working in the PWD Department. However, this

petition suffers delay and laches. The judgment in the case of

A.L.Thakur (supra) was passed in the year 2012, whereas this

petition has been filed in the year 2021, specifically when the

petitioners have already retired in the year 2009.

Heard the learned counsel for the parties.

It is well-established principle of law that delay frustrates

equity.

Undisputedly, the petitioners are seeking the benefit of the

judgment dated 27/06/2012 passed in the case of A.L. Thakur

(supra). The petitioners have retired in the year 2009, whereas THE HIGH COURT OF MADHYA PRADESH 3 WP 6670 of 2021 Shripatilal Jatav and Anr. Vs. State of MP and Ors.

this petition has been filed in the year 2021. Why the petitioners

were sitting over their rights, have not been explained.

The Supreme Court in the case of UP Jal Nigam and

Another vs. Jaswant Singh and Another, reported in (2006) 11

SCC 464 has held as under:-

''7.Learned Senior Counsel for the appellants has invited our attention to various decisions to impress upon that persons who are guilty of such laches and acquiesced with the situation should not be granted any relief because it is going to cost the Nigam a heavy financial burden to the tune of Rs.17,80, 43,108/-. Therefore, relief should be confined to those persons who were continuing in service and filed their writ petitions in time but not to all and sundry who woke up to file the writ petitions much after their retirement. In this connection, our attention was invited to a decision of this Court in the case of Rup Diamonds v. Union of India (1989) 2 SCC 356, wherein their Lordships observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, their Lordships held as follows :(SCC pp.356-57) " Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which THE HIGH COURT OF MADHYA PRADESH 4 WP 6670 of 2021 Shripatilal Jatav and Anr. Vs. State of MP and Ors.

is brought after a year after the first rejection. As observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners' case in any such appeal. "

8. Our attention was also invited to a decision of this Court in the case of State of Karnataka v. S.M.Kotrayya (1996) 6 SCC 267. In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached this Court and this Court after considering the matter observed as under :(SCC p.268) " Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub-section (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was THE HIGH COURT OF MADHYA PRADESH 5 WP 6670 of 2021 Shripatilal Jatav and Anr. Vs. State of MP and Ors.

as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay."

9. Similarly, in the case of Jagdish Lal v. State of Haryana (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows : (SCC p.542) " The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."

10. In the case of Union of India v. C.K. Dharagupta (1997) 3 SCC 395, it was observed as follows : (SCC p. 398, para 9) " 9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P.Joshi v. Union of India OA No. 497 of 1986, decided on 17-3-1987 gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K.Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."

11. In the case of Government of W.B. v. Tarun K. Roy (2004) 1 SCC 347, their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as THE HIGH COURT OF MADHYA PRADESH 6 WP 6670 of 2021 Shripatilal Jatav and Anr. Vs. State of MP and Ors.

follows :(SCC pp.359-60, para 34) "34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar 19991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others there from who may be found to be entitled thereto by a court of law."

12. The statement of law has also been summarized in Halsbury's Laws of England, Para 911 , pg. 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 THE HIGH COURT OF MADHYA PRADESH 7 WP 6670 of 2021 Shripatilal Jatav and Anr. Vs. State of MP and Ors.

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 summarized above, the respondents are guilty since the respondents has 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 while 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 repercussion on the financial management of the Nigam. Why the Court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence.''

Thus, this Court is of the considered opinion that merely THE HIGH COURT OF MADHYA PRADESH 8 WP 6670 of 2021 Shripatilal Jatav and Anr. Vs. State of MP and Ors.

because the petitioners were waiting for the outcome of the

litigation which was being contested by the vigilant litigants

cannot be a good ground for ignoring the delay and laches in

filing the writ petition. Furthermore, the judgment in the case of

A.L. Thakur (supra) was passed by this Court in the year 2012,

whereas this petition has been filed after nine years of the said

judgment.

At this stage, it is submitted by the Counsel for the

petitioners that it is well-established principle of law that in

service matters, the similarly placed employees are also entitled

for the benefit in view of the law laid down by the Court. In case

if the salary is refixed, then the pension of the petitioners would

get affected and accordingly, the respondents may be directed to

refix the salary of the petitioners without any relief for arrears of

salary but the respondents may be directed to recalculate and refix

the future pension of the petitioner in accordance with law.

So far as the contention made by the Counsel for the

petitioners with regard to recurring cause of action is concerned,

it has some force.

Accordingly, this petition is disposed of with liberty to the

petitioners to make representation to the respondents/authorities

thereby seeking their claim. In case, if the respondents are of the THE HIGH COURT OF MADHYA PRADESH 9 WP 6670 of 2021 Shripatilal Jatav and Anr. Vs. State of MP and Ors.

view that the petitioners are entitled for the benefit which has

been extended in the case of A.L.Thakur (supra), then the salary

shall be refixed in accordance with law and their pension shall be

reassessed. However, as the petitioners have approached this

Court belatedly without any explanation of delay, therefore, it is

directed that if the representation is decided in favour of the

petitioners, then they shall not be entitled for arrears of salary or

interest but they shall be entitled for refixed pension payable in

future.

It is made clear that direction to decide the representation

should not be construed as a direction to allow the representation.

The representation shall be decided strictly in accordance with