Chandra Kumar Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 12156 MP

                            1          W.P.No.18265/2023




IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 1st OF AUGUST, 2023
              WRIT PETITION No. 18265 of 2023
BETWEEN:-

CHANDRA KUMAR TIWARI S/O SHRI
RAJENDRA PRASAD TIWARI, AGED
ABOUT 43 YEARS, OCCUPATION: HEAD
CONSTABLE(IN     CHARGE)   POLICE
STATION A.J.K. BALAGHAT R/O WARD
NO 11, CHARUCH ROAD, BUDHI
(MADHYA PRADESH)


                                      .....PETITIONER
(BY SHRI PARAG TIWARI - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH
      THROUGH      ITS   PRINCIPAL
      SECRETARY HOME DEPARTMENT
      MANTRALAYA VALLABH BHAWAN
      BHOPAL (MADHYA PRADESH)


2.    DIRECTOR GENERAL OF POLICE
      POLICE HEADQUARTERS BHOPAL
      (MADHYA PRADESH)


3.    INSPECTOR GENERAL OF POLICE
      BALAGHAT   ZONE   BALAGHAT
      (MADHYA PRADESH)


4.    SUPERINTENDENT         POLICE
      SUPERINTENDENT         OFFICE
      DISTRICT BALAGHAT    (MADHYA
      PRADESH)
                                    2                      W.P.No.18265/2023



5.   RAMNARESH PATEL S/O NOT
     MENTION          OCCUPATION:
     ASSISTANT SUB INSPECTOR (IN-
     CHARGE)   DISTRICT   UMARIA
     DISTRICT   UMARIA   (MADHYA
     PRADESH)


                                                      .....RESPONDENTS
(BY SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL )
...................................................................................................

      This petition coming on for admission this day, the court passed
the following:
                               ORDER

This petition under Article 226 of Constitution of India, has been filed seeking the following reliefs :-

"(i) To call for the entire material pertaining to instant controversy for its kind perusal.

(ii) To issue a writ in the nature of mandamus directing the respondents authority to grant promotion to petitioner w.e.f.18.09.2013 which is still dues towards petitioner along with pay fixation, arrears thereto, in the interest of justice;

(iii) Any other order/orders, direction/directions which this Hon'ble Court may deem fit may also be passed;

(iv) Cost of the petition may also kindly be awarded."

2. It is submitted by counsel for the petitioner that one Ramnaresh Patel was promoted to the post of Head Constable in the year 2013, however, he fairly conceded that the promotion of Ramnaresh Patel was never challenged by the petitioner. Thereafter, Ramnaresh Patel has been further promoted to the post of Assistant Sub-Inspector. It is submitted that since the petitioner had made representations against his supersession in the year 2013, therefore, pursuant to the representation

dated 13.03.2013, the Superintendent of Police Balaghat has forwarded the application to Special Director General of Police (SAF), Police Headquarters, Bhopal. Therefore, the Special Director General of Police (SAF) may be directed to decide the representation made by the petitioner.

3. Heard the learned counsel for the petitioner.

4. From the contention of the petitioner, it is clear that he was appointed on the post of Constable on 08.06.2007 and in the fit list dated 29.10.2012 for promotion to the post of Head Constable, his name was included. However, the then Superintendent of Police restrained the petitioner from appearing in trade test on the ground that the petitioner and other similarly situated persons had not done D and M Course. Thereafter, the name of petitioner was once again included in the fit list dated 04.09.2013 but since the petitioner was on leave, therefore, the trade test of respondent no.5 was taken and accordingly he was promoted to the post of Head Constable; whereas he was appointed on 03.03.2008 i.e. subsequent to the petitioner. Thus, it is clear that the petitioner was superseded in the year 2013. Thereafter, the respondent no.5 has also been given further promotion to the post of Assistant Sub-Inspector. The petitioner has approached this Court after 10 years of his supersession. Much water must have flown under the bridge.

5. Clause 4 of the writ petition reads as under :-

"4. DELAY, IF ANY, IN FILING THE PETITION AND EXPLANATION THEREOF:

Petitioner submits that there is no delay in filing the present petition; it is within time and having a recurring cause of action."

6. Therefore, the petitioner has not given any reason for delay in approaching this Court. However, it is submitted by the counsel for the petitioner that since the Superintendent of Police, Balaghat has forwarded the application to Special Director General of Police, SAF, therefore, that will give a fresh cause of action.

7. It is well established principle of law that successive representations would not give rise to a fresh cause of action and even if any decision is taken on a representation pertaining to a stale/old case, still the said decision will also not provide fresh cause of action.

8. The Supreme Court in the case of State of Uttaranchal v. Shiv Charan Singh Bhandari reported in (2013) 12 SCC 179 has held as under :

"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 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 that the same may not be applicable in all circumstances where certain categories of fundamental rightsare infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court."

9. 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. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the 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."

10. The Supreme Court in the case of Union of India v. M.K. Sarkar reported in (2010) 2 SCC 59 has held as under :

"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."

11. The Supreme Court in the case of State of T.N. v. Seshachalam reported in (2007) 10 SCC 137 has held as under :

"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."

12. The Supreme Court in the case of Union of India and others v. Chaman Rana reported in (2018) 5 SCC 798 has held as 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 Society v. Kasbekar, 1953 SCC OnLine Bom 64 : AIR 1954 Bom 202] , by Chagla, C.J. observing as follows: (SCC OnLine Bom : AIR p. 203, para 2) "2. ... Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra-legal or extra- judicial. Once the final decision of the Government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner. ...".

13. The petitioner has not explained the delay in filing this writ petition.

14. The Supreme Court in the case of Karnataka Power Corpon. Ltd. Vs. K. Thangappan reported in (2006) 4 SCC 322 has held as under :-

6. 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 Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially andreasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Shri Balwant Regular Motor Service. Sir Barnes had 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 either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were

afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere 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 circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of 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 petitions filed after inordinate delay.

9. 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 indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise

of its writ jurisdiction. It was stated that this rule is 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 writ jurisdiction is exercised after unreasonable delay, it may 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."

15. The Supreme Court in the case of M.P. Ram Mohan Raja Vs. State of T.N. Reported in (2007) 9 SCC 78 has held as under :

11. So far as the question of delay is concerned, no hard-and- fast rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8-10-1996 an order was passed by the Collector in pursuance of the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease. The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit.

16. The Supreme Court in the case of Shiv Dass Vs. Union of India reported in (2007) 9 SCC 274 has held as under :

6. Normally, in the case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India. 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 Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, PC at p. 239 was 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 arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere 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 circumstances always

important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, 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 indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is 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 writ jurisdiction is exercised after unreasonable delay, it may 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.

17. The Supreme Court in the case of Nadia Distt. Primary School Council Vs. Sristidhar Biswar reported in (2007) 12 SCC 779 has held as under :

11. In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision in Dibakar Pal. Such persons should not be given any benefit by the court when they allowed more than nine years 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.

18. The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant Singh reported in (2006) 11 SCC 464 has held as under :

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."

19. The Supreme Court in the case of Jagdish Lal Vs. State of

Haryana reported in (1997) 6 SCC 538 has held as under :

18. That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution.

20. The Supreme Court in the case of NDMC Vs. Pan Singh reported in (2007) 9 SCC 278 has held as under :

16. 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, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference 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 date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained 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. Jaswant Singh and Karnataka Power Corpn. Ltd. v. K. Thangappan.)

17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India and 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. It has been pointed out by this Court in a number of cases that

representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. There is a limit to the time which can 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 regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik.)

10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."

21. In the light of the judgments passed by the Supreme Court, this Court is of the considered opinion that this petition suffers from delay and laches, which has not been clarified.

22. Accordingly, the petition is dismissed on the ground of delay and laches.

(G.S.AHLUWALIA) JUDGE TG/-

TRUPTI GUNJAL 2023.08.03 19:10:00 +05'30'