Madhya Pradesh High Court
Kailash Chandra Pandey vs Revenue Department on 23 August, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
ON THE 23 rd OF AUGUST, 2023
WRIT PETITION No. 4476 of 2016
BETWEEN:-
KAILASH CHANDRA PANDEY S/O SHRI SHALIG RAM
PANDEY, AGED ABOUT 75 YEARS, OCCUPATION:
PENSIONER, R/O MIG-47, RISHI ANAND NAGAR,
MANDSAUR (MADHYA PRADESH)
.....PETITIONER
(SHRI RAVINDRA PRAKASH JOSHI, LEARNED COUNSEL FOR THE
PETITIONER [P-1]).
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY TO THE
GOVERNMENT OF MP, DEPARTMENT OF
REVENUE, VALLABH BHAWAN, MANTRALAYA,
BHOPAL (MADHYA PRADESH)
2. THE COMMISSIONER(REVENUE), UJJAIN
DIVISION, UJJAIN (MADHYA PRADESH)
3. THE DISTRICT COLLECTOR, MANDSAUR
(MADHYA PRADESH)
.....RESPONDENTS
( MS. MONISHA KASTURI, PANEL LAWYER FOR THE RESPONENT/STATE)
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This petition coming on for admission this day, th e court passed the
following:
ORDER
Heard finally, with the consent of both the parties.
2. In this petition under Article 226 of the Constitution of India, the
petitioner has prayed for the following reliefs :-
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NAIR
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7(a) to call for the relevant records of the case from the
respondents;
(b) to command the respondents to consider the case of the
petitioner for restoration of his promotion on the post of
Accountant in the pay scale of Rs.1200-2040 revised from
time to time and to grant the petitioner all consequential and
monetary benefits including arrears of salary together with
interest @ 12% per annum by a writ of Mandamus, or any
appropriate writ, direction or order.
(c) to command the respondents to grant the petitioner
benefit of Kramonnati after completion of 12 years and 20
years of service, in terms of the circular dated 21.03.1983 by
granting him all consequential and monetary benefits
including arrears of salary together with interest @ 12% per
annum by a writ of Mandamus or any other appropriate writ,
direction or order;
(d) allow this petition with costs.
(e) pass such other order(s) as may be deemed appropriate in
the facts and circumstances of the case, to grant relief to the
petitioner.
3. Brief facts of the case are that the petitioner was initially appointed on
the post of Lower Division Clerk on 22.09.1962. The designation was changed
as Assistant Grade-III in due course of time. The petitioner is seeking
Kramonnati in terms of Circular dated 21.03.1983. The petitioner attained the
age of superannuation and stood retired from the post of First Grade
Clerk(Upper Division Clerk=Assistant Grade - II) w.e. 28.02.1998.
4. Learned counsel for the petitioner submits that the petitioner had
submitted several representations from time to time making a request for
restoration of his promotion or to consider afresh for promotion to the post of
Accountant and higher post, but nothing was done. Being aggrieved, the present
writ petition has been filed.
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5. Per Contra, learned counsel for the respondent vehemently opposed
the prayer and raised a preliminary objection with regard to delay and latches.
He submitted that the petitioner in Para - 4 of the memo of petition has not
explained the delay for not approaching this Court for the last 18 years and has
been maintaining silence. In such circumstances, the petition suffers from
inordinate delay and latches, therefore, the same is liable to be dismissed.
6. Heard learned counsel for the parties and perused the record.
7.This Court by order dated 4.9.2020 passed in W.P. No.12836/2020
(Gwalior Bench) has held as under :
" The delay defeats equity and if the petitioner approaches
the Court after a long delay, then the relief prayed by him
may be denied on the ground of delay and laches irrespective
of the fact that the similarly situated other candidates have
been extended the benefit of judgment.
The Supreme Court in the case of Chairman/Managing
Director, U.P. Power Corporation Limited and Ors. vs.Ram
Gopal by order dated 30/01/2020 passed in Civil Appeal
No.852 of 2020 (Arising Out of Special Leave Petition No.
36253 of has held as under:-
''iii) Inordinate delay in filing writ petition :
14. Finally, the prolonged delay of many years ought not to
have been overlooked or condoned. Services of the
Respondent were terminated within months of his
appointment, in 1978. Statedly, the Respondent made a
representation and served UPPCL with a legal notice in
1982, however such feeble effort does little to fill the gap
between when the cause of action arose and he chose to seek
its redressal (in 1990).
15. Seen from a different perspective also, it is clear that the
Respondent has shown little concern to the settled legal
tenets. Even a civil suit challenging termination of services,
if filed by the Respondent, would have undoubtedly been
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barred by limitation in 1990. In a similar situation where the
appellant belatedly challenged the promotion of his
junior(s), this Court in P.S. Sadasivaswamy v. State of Tamil
Nadu, held as follows:
" if the appellant was aggrieved by it he should have
approached the Court even in the year 1957, after the two
representations made by him had failed to produce any
result. One cannot sleep over the matter and come to the
Court questioning that relaxation in the year 1971.¦ In effect
he wants to unscramble a scrambled egg. It is very difficult
for the Government to consider whether any relaxation of the
rules should have been made in favour of the appellant in the
year 1957. The conditions that were prevalent in 1957,
cannot be reproduced now. 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
exercisetheir 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."
16. Whilst it is true that limitation does not strictly apply to
proceedings under Articles 32 or 226 of the Constitution of
India, nevertheless, such rights cannot be enforced after an
unreasonable lapse of time. Consideration of unexplained
delays and inordinate latches would always be relevant in
writ actions, and writ courts naturally ought to be reluctant
in exercising their discretionary jurisdiction to protect those
who have slept over wrongs and allowed illegalities to fester.
Fence sitters cannot be allowed to barge into courts and cry
for their rights at their convenience, and vigilant citizens
ought not to be treated alike with mere opportunists. On
multiple occasions, it has been restated that there are
implicit limitations of time within which writ remedies can
be enforced. In SS Balu vs. State of Kerala, this Court
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observed thus:
"17. It is also well-settled principle of law that delay defeats
equity. ¦It is now a trite law that where the writ petitioner
approaches the High Court after a long delay, reliefs prayed
for may be denied to them on the ground of delay and latches
irrespective of the fact that they are similarly situated to the
other candidates who obtain the benefit of the judgment"
(emphasis supplied)
17. Similarly, in Vijay Kumar Kaul v. Union of India this
Court while considering the claim of candidates who, despite
being higher in merit, exercised their right to parity much
after those who were though lower in merit but were
diligently agitating their rights, this Court observed that:
"27. 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 latches. 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. We may hasten to add that these principles may not,
however, apply to judgments which are delivered in rem. The
State and its instrumentalities are expected In such category
of cases to themselves extend the benefit of a judicial
pronouncement to all similarly placed employees without
forcing each person to individually knock the doors of
courts. This distinction between operation of delay and
latches to judgments delivered in rem and in personam, is
lucidly captured in State of Uttar Pradesh vs. Arvind Kumar
Srivastava laying down that:
"22.1- The normal rule is that when a particular set of
employees is given relief by the court, all other identically
situated persons need to be treated alike by extending that
benefit. Not doing so would amount to discrimination and
would be violative of Article 14 of the Constitution of India.
This principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this
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Court from time to time postulates that all similarly situated
persons should be treated similarly. Therefore, the normal
rule would be that merely because other similarly situated
persons did not approach the Court earlier, they are not to
be treated differently.
22.2. However, this principle is subject to well recognized
exceptions in the form of latches and delays as well as
acquiescence. Those persons who did not challenge the
wrongful action in their cases and acquiesced into the same
and woke up after long delay only because of the reason that
their counterparts who had approached the court earlier in
time succeeded in their efforts, then such employees cannot
claim that the benefit of the judgment rendered in the case of
similarly situated persons be extended to them. They would
be treated as fence-sitters and latches and delays, and/or the
acquiescence, would be a valid ground to dismiss their
claim.
22.3. However, this exception may not apply in those cases
where the judgment pronounced by the court was judgment in
rem with intention to give benefit to all similarly situated
persons, whether they approached the court or not. With
such a pronouncement the obligation is cast upon the
authorities to itself extend the benefit thereof to all similarly
situated persons. Such a situation can occur when the
subject-matter of the decision touches upon the policy
matters, like scheme of regularisation and the like (see K. C.
Sharma v. Union of India [ K. C. Sharma v. Union of India,
(1997) 6 SCC 721 : 1998 SCC (L&S) 226]). On the other
hand, if the judgment of the court was in personam holding
that benefit of the said judgment shall accrue to the parties
before the court and such an intention is stated expressly in
the judgment or it can be impliedly found out from the tenor
and language of the judgment, those who want to get the
benefit of the said judgment extended to them shall have to
satisfy that their petition does not suffer from either latches
and delays or acquiescence."
(Emphasis applied)
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Signed by: PREETHA HARI
NAIR
Signing time: 8/26/2023
6:59:15 PM
19. The order passed by the High Court for retention of
Shyam Behari Lal in service, does not possess any ingredient
of a Judgment in rem. The above cited exception, therefore,
does not come to the Respondent's rescue. It is also pertinent
to mention that neither has it been pleaded nor is it apparent
from the material on record that the Respondent was unable
to approach the court of law in time on account of any social
or financial disability. Had such been the case, he ought to
have availed free legal aid and should have ventilated his
grievances in a timely manner. Instead, he seems to be under
the assumption that the termination order is illegal, that he
consequently has a right to be reinstated, and that he can
agitate the same at his own sweet-will. Neither of these three
assumptions are true, as elaborated by us earlier."
The Supreme Court in the case of State of Karnataka and
Others vs. S. M. Kotrayya and Others, reported in (1996) 6
SCC 267 has held as under:-
''9. Thus considered, we hold that it is not necessary that the
respondents should give an explanation for the delay which
occasioned for the period mentioned in subsections (1) or (2)
of Section 21, but they should give explanation for the delay
which occasioned after the expiry of the aforesaid respective
period applicable to the appropriate case and the Tribunal
should be required to satisfy itself whether the explanation
offered was proper explanation. In this 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 as to why they could not avail of the remedy
of redressal of their grievance before the expiry of the period
prescribed under sub-section (1) or (2). That was not the
explanation given. Therefore, the Tribunal is wholly
unjustified in condoning the delay."
Faced with such a situation, the counsel for the petitioner
submitted that although his prayer for grant of arrears of
salary for the period up-to 31st May, 2018 may be barred by
limitation, but if the said additional period of three years is
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added to the service of the petitioner, then it will affect the
pension of the petitioner and therefore, the petitioner has
recurring cause of action so far as the pension is concerned.
xxx
The Supreme Court in the case of Secretary, Ministry of Defence
vs. Babita Puniya and Others by order dated 17th February,
2020 in Civil Appeal Nos. 9367-9369 of 2011 has made
direction applicable to a particular class of Women Army
Officers. When certain Women Officers who have retired after the
pronouncement of judgment but before formulation of scheme
moved Miscellaneous Application No.1497- 1498/2020, then by
order dated 03/09/2020, the said application was dismissed on
the ground that it would amount to a review."
8. The petitioner has approached this Court after 18 long years, for which
no plausible explanation has been put forth by him. Stale and dead cases can
not be reopened. The petitioner has been sleeping over his right and woke up
after a long period of 18 years to approach this Court. In view of the above,
this Court refrains from exercising extraordinary jurisdiction under Article 226
of the Constitution of India as the petition suffers from unexplained delay and
latches on the part of the petitioner. In any case, non-grant of Kramonnati,
promotion or pay fixation does not constitute recurring cause of action.
9. Accordingly, the petition stands dismissed on the ground of delay and
latches. No order as to costs.
(S. A. DHARMADHIKARI)
JUDGE
pn
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Signed by: PREETHA HARI
NAIR
Signing time: 8/26/2023
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