Dr. Smt. Saroj Modi vs The State Of Madhya Pradesh
2021 Latest Caselaw 4866 MP

     1     THE HIGH COURT OF MADHYA PRADESH
                     Writ Petition No.16046/2021
           Dr. Smt. Saroj Modi Vs. State of M.P. and others

Gwalior, Dated:01/09/2021

         Shri B.D. Jain, Advocate for petitioner.

         Shri     Deepak         Khot,       Government           Advocate         for

respondents/State.

This Writ Petition under Article 226 of the Constitution of

India has been filed seeking the following reliefs:-

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2. It is the case of the petitioner that the petitioner was appointed

on the post of Professor in Political Science after her selection

through PSC. Thereafter, by order dated 30/6/1993 she was promoted

to the post of Principal, Government Degree College, Bhind and by

order dated 29/3/2008 she was promoted to the post of Principal, Post

Graduate College. Since no separate and clear seniority list was

published, therefore, some of the aggrieved persons approached the

High Court by filing a Writ Petition No.11324/2003, which was

disposed of by order dated 7/9/2005 with the following

observations:-

"15. In view of the above we allow this petition in part and Madhya Pradesh Educational Service (Collegiate Branch) Recruitment Rules 1990 are read down in such a manner that no Time bound 2 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

promoted Professor shall have seniority above the directly recruited Professors and even in the promotion cadre of 'Principals, Degree College', those promoted from the feeder line of directly recruited Professors shall be shown above the Principals promoted from the feeder line of Time bound Professors. The seniority list of 'Principals, Degree College' and consequently, the seniority list of 'Principals, PG College' shall be revised accordingly. The petitioners will also be entitled to all consequential benefits. Compliance within six months from the date of receipt of this order. Parties to bear their respective costs."

3. Accordingly, on 29/8/2008 a revised seniority list was issued

by the Higher Education Department and the name of the petitioner

was also included, but the financial benefits were denied on the

principle of "no work no pay". Accordingly, on 20/1/2011 the

petitioner made a representation on the ground that the consequential

benefits attached to the post of Principal, Degree College and

Principal, Post Graduate College be paid to her w.e.f.7/9/1991 and

24/9/1996 respectively. One Dr. Radha Vallabh Sharma, who is a

retired Principal of Government Law College, Bhopal, filed a Writ

Petition No.2654/2009, which was disposed of by the High Court by

order dated 11/7/2011 and directed the respondents to decide the

representation and accordingly, the representation of Dr. Radha

Vallabh Sharma was allowed and the consequential benefits were

given to him by order dated 26/7/2013. Thereafter, one more writ

petition was filed by some of the other aggrieved persons which was 3 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

registered as Writ Petition No.790/2015 complaining that the benefit

has been given only to those persons who have approached the Court

and by order dated 11/5/2015 passed in Writ Petition No.790/2015, It

was allowed that the respondents shall extend the benefit which has

been extended to Dr. Shivdayal Gautam and the directions given in

Writ Petition No.2654/2009 shall be applicable mutatis mutandis in

the case of the petitioners in Writ Petition No.790/2015. It is

submitted that the petitioner has retired on 28/2/2018 from the post of

Additional Director, Higher Education, however, she has not been

extended the benefit for which she was otherwise entitled like other

similarly placed candidates, therefore, she has made a representation

to the respondents on 4/8/2021, however, the said representation is

still pending and has not been decided so far. Accordingly, it is

submitted by the counsel for the petitioner that the respondents be

directed to decide the representation dated 4/8/2021.

4. Per contra, the petition is vehemently opposed by the counsel

for the State. It is submitted by Shri Deepak Khot that it is well

established principle of law that if a person was sleeping over his /

her rights and if he / she wakes up only after the benefit is extended

to similarly situated persons, then it would not mean that the cause of

action would arise only after the favourable order was passed in

favour of similarly situated candidates. The cause of action in the 4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

present case arose in the year 2008 when the revised seniority list

was issued on 29/8/2008. The petitioner has approached this Court

after 13 long years and has not given any explanation for sitting tight

over the matter.

5. In reply, it is submitted by the counsel for the petitioner that

since the petitioner is a retired employee and was unable to lay her

hands on different orders passed by the High Court in favour of the

similarly situated persons, therefore, she could not approach this

Court at the earliest.

6. Heard learned counsel for the parties.

7. The Supreme Court in the case of State of Orissa and another

Vs. Mamata Mohanty reported in (2011) 3 SCC 436 has held as

under:-

"52. In the very first appeal, the respondent filed writ petition on 11-11-2005 claiming relief under the Notification dated 6-10-1989 w.e.f. 1-1-1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act, 1963, makes it obligatory on the part of the court to dismiss the suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at the appellate stage because in some of the cases it may go to the root of the matter. (See Lachhmi Sewak Sahu v. Ram Rup Sahu [AIR 1944 PC 24] and Kamlesh Babu v. Lajpat Rai Sharma [(2008) 12 SCC 577] .)

53. Needless to say that the Limitation Act, 1963 5 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1-1-1986 by filing a petition on 11-11-2005 but the High Court for some unexplained reason granted the relief w.e.f. 1-6- 1984, though even the Notification dated 6-10- 1989 makes it applicable w.e.f. 1-1-1986.

54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See Rup Diamonds v. Union of India [(1989) 2 SCC 356 : AIR 1989 SC 674], State of Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267 : 1996 SCC (L&S) 1488] and Jagdish Lal v. State of Haryana [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550 : AIR 1997 SC 2366] .)

68.(xv) The cases had been entertained and relief had been granted by the High Court without considering the issue of delay and laches merely placing reliance upon earlier judgments obtained by diligent persons approaching the courts within a reasonable time."

8. Thus, it is clear that the cause of action would not arise from 6 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

the day when a favourable order is passed in favour of the similarly

situated employees. If a person is sleeping over his / her rights and

wakes up after the favourable orders are passed in favour of the

similarly situated employees, then it cannot be said that the

explanation for delay has been plausibly given. Even otherwise, in

the present case the petitioner was working on the administrative post

of Additional Director, Higher Education. The last order which was

passed in favour of the co-employee is dated 11/5/2015. A bald

statement that the petitioner was not aware of the said order cannot

be accepted unless and until it is pointed out that she could not gain

knowledge of the said order in spite of due diligence. As already

pointed out, since the petitioner was working on the administrative

post, i.e. Additional Director, Higher Education Department,

therefore, it cannot be held that she was not having knowledge of the

identical orders passed in the case of co-employees. Even otherwise,

the petitioner has approached this Court after six years of the last

order passed on 11/5/2015 in Writ Petition No.790/2015. As no

plausible explanation has been given by the petitioner for delay in

approaching this Court, her prayer for directing the respondents to

decide the representation can also not be entertained. The Supreme

Court in the case of Union of India and others Vs. C. Girija and

others reported in (2019) 15 SCC 633 has held that the High Court 7 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

should not re-open the stale cases by directing the respondents to

decide the representations. Relevant paragraphs thereof read as

under:-

"16. This Court had occasion to consider the question of cause of action in reference to grievances pertaining to service matters. This Court in C. Jacob v. Director of Geology and Mining [C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115 : (2008) 2 SCC (L&S) 961] had occasion to consider the case where an employee was terminated and after decades, he filed a representation, which was decided. After decision of the representation, he filed an OA in the Tribunal, which was entertained and order was passed. In the above context, in para 9, following has been held :

(SCC pp. 122-23) "9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligations of parties. Little do they realise the consequences of such a direction to "consider". If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge 8 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."

17. This Court again in Union of India v. M.K. Sarkar [Union of India v. M.K. Sarkar, (2010) 2 SCC 59 : (2010) 1 SCC (L&S) 1126] on belated representation laid down following, which is extracted below : (SCC p. 66, para 15) "15. When a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing 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 cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."

18. Again, this Court in State of Uttaranchal v. Shiv Charan Singh Bhandari [State of Uttaranchal v. Shiv Charan Singh Bhandari, (2013) 12 SCC 179 : (2014) 3 SCC (L&S) 32] had occasion to consider question of delay in challenging the promotion. The Court further held that representations relating to a stale claim or dead grievance does not give rise to a fresh cause of action. In paras 19 and 23 following was laid down : (SCC pp. 184-85) "19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action 9 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.

***

23. In State of T.N. v. Seshachalam [State of T.N. v. Seshachalam, (2007) 10 SCC 137 : (2008) 1 SCC (L&S) 475] , this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus : (SCC p. 145, para 16) '16. ... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. 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.'"

19. This Court referring to an earlier judgment in P.S. Sadasivaswamy v. State of T.N. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22] noticed that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. In paras 26 and 28, following was laid down : (Shiv Charan Singh Bhandari case [State of Uttaranchal v. Shiv Charan Singh Bhandari, (2013) 12 SCC 179 : (2014) 3 SCC (L&S) 32] , SCC pp. 185-86) "26. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivaswamy v. State of T.N. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22] , wherein it has been laid down that : (SCC p. 154, para

2) 10 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

'2. ... A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. 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 court to put forward stale claims and try to unsettle settled matters.' ***

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."

In the case of Vikram Singh Vs. State of UP and others by

order dated 20/12/2018 passed in Writ - A No.66009 of 2008 it has

been held as under:-

"16. In Karnataka Power Corporation Ltd. vs. K. Thangappan, (2006) 4 SCC 322, it was held that series of representation cannot extend the period of limitation to condone the laches on the part of the petitioner.

17. Reply to the representation relating to matter which have become stale or barred by limitation, 11 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

can be rejected on that ground alone, without examining the merits of the claim. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim. (Refer: C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115)

18. Rejection of representation by the authority pursuant to a direction of the Court does not give the aggrieved a fresh cause of action. The issue of delay/laches/limitation should be considered with reference to the original cause of action. The court's direction to consider the representation would not revive a dead or stale claim or dispute.

19. Supreme Court had occasion to examine such situations in Union of India v. M.K. Sarkar, 2010 (2) SCC 59, The Court held as follows: "The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. x x x x x When a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing 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 cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."

9. Considering the totality of the facts and circumstances of the 12 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.16046/2021 Dr. Smt. Saroj Modi Vs. State of M.P. and others

case, no case is made out warranting interference.

10. Accordingly, the petition fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.09.03 17:27:55 +05'30'