Madhya Pradesh High Court
Mohanlal Parmar vs The Director on 29 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 29 th OF FEBRUARY, 2024
WRIT APPEAL No. 504 of 2024
BETWEEN:-
MOHANLAL PARMAR S/O SHRI AMARLAL PARMAR,
AGED ABOUT 65 YEARS, OCCUPATION: RETIRED 149,
BOHRA BAKHAL, MAHIDPUR, DISTRICT UJJAIN
(MADHYA PRADESH)
.....APPELLANT
(SHRI L. C. PATNE, LEARNED COUNSEL FOR THE PETITIONER [P-1].
)
AND
1. THE DIRECTOR DIRECTORATE OF PUBLIC
INSTRUCTIONS GAUTAM NAGAR BHOPAL
(MADHYA PRADESH)
2. THE DISTRICT EDUCATION OFFICER DISTRICT
UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS/STATE)
This appeal coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
Heard on the question admission and interim relief.
This writ appeal under Section 2(1) of the Madhya Pradesh Uccha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed being
aggrieved by the order dated 10.01.2024 passed in Writ Petition No.7251/2014
whereby the writ petition filed by the appellant/petitioner has been dismissed.
2. Brief facts of the case are that appellant while being posted as
Assistant Teacher was imposed with punishment of withholding of two
increments with cumulative effect which was challenged by him in appeal before
the appellate authority. The appeal came to be dismissed vide order dated
31.05.2013 on the ground of delay of 08 years and the review filed against the
same was also dismissed. Against both the orders of dismissal of appeal as well
as review, appellant has filed writ petition which was also dismissed. Now, the
present intra Court appeal is filed.
3 . Learned counsel for the appellant submits that learned Single Judge
has erred in law and facts while dismissing the writ petition on the ground of
delay and laches without appreciating the fact that appellant was imposed with
major punishment of withholding of two annual increments with cumulative
effect with further direction that the period of suspension as not on duty and
payment is restricted to subsistence allowed already paid. Learned Single Judge
has further failed to consider that the withholding of increments with cumulative
effect remained operative during the entire service tenure thereby leading to
reduction in his retiral and other consequential benefits. The learned Single
Judge while dismissing the writ petition ought to have applied the law of
limitation as well as doctrine of delay and laches liberally looking to the
circumstances of the appellant. Hence, the present appeal may be allowed
setting aside the impugned order passed by the learned Single Judge.
4. Heard, learned counsel for the appellant and perused the record.
5. On perusal of the impugned order as well as the writ petition, it is
seen that the appellant had filed the writ petition after a period of 08 years for
which no plausible explanation has been put forth with regard to huge delay in
filing the writ petition except reiteration of the same reasons i.e. his brother
was indisposed and he remained busy in getting his treatment done and that his
brother had expired in the year 2005 which have been considered by the
Appellate authority while dismissing his appeal as well.
6. The cause of action arose in the year 2005 itself. However, appellant
after waiting for a period of 08 years has chosen to file appeal before the
appellate authority in the year 2013. It is well established principle of law that
old and stale cases need not be reopened. Delay is very significant in matter of
granting relief and Court cannot come to rescue of the persons who are not
vigilant of their rights. This Court finds support in its view by catena of
judgments passed by the Supreme Court which are as follows:
7. The Supreme Court in the case of Union of India and others vs.
C. Girija and others by order dated 13.02.2019 passed in Civil Appeal No.
1577/2019 has held as under:-
13. This Court again in the case of Union of India and Others Vs. M.K. Sarkar,
(2010) 2 SCC 59 on belated representation laid down following, which is extracted
below:-
.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
latches 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 latches.
14.Again, this Court in State of Uttaranchal and Another Vs. Shiv Charan Singh
Bhandari and Others, (2013) 12 SCC 179 had occasion to consider question of delay
in challenging the promotion. The Court further held that representations relating to a
stale 15 claim or dead grievance does not give rise to a fresh cause of action. In
Paragraph Nos. 19 and 23 following was laid down:-
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.
23. In State of T.N. v. Seshachalam, (2007) 10 SCC 137, 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 latches 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
latches 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.
15. This Court referring to an earlier judgment in 16 P.S. Sadasivaswamy Vs.
State of Tamil Nadu, (1975) 1 SCC 152 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 Paragraph No. 26 and 28,
following was laid down:-
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., (1975) 1 SCC 152, wherein it
has been laid down that: (SCC p. 154, para 2)
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 latches and granting relief is
contrary to all settled principles and even 17 would not remotely attract the concept of
discretion. We may hasten to WA No. 732/2020 (6) 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.
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 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. 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 2156/2020 Naresh Singh & Anr.
vs. State of M.P. & Ors . 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.
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.
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 whereby 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 trainnew 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."
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 (10) 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;
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.
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.
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 cutoff 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.
19. We, therefore, are of the opinion that it was not a fit case where the High
Court should have exercised its discretionary jurisdiction in favour of the
respondents herein.
6. As the appellant was sleeping over his rights and woke up from
slumber after passage of 08 years, his appeal was dismissed on the ground of
delay and the review application filed against the appeal also stood dismissed,
learned Single Judge has rightly held that there are no cogent reasons on the
basis of which such inordinate delay can be condoned and therefore had
dismissed the writ petition.
7. In view of the above pronunciations of Supreme Court and looking to
the fact that there is an inordinate delay on the part of the appellant which has
neither been satisfactorily explained while preferring appeal before the appellate
authority nor at the time of filing of writ petition before this Court, we decline to
interfere in the order passed by the learned Single Judge.
8 . Accordingly, the present appeal fails and is hereby dismissed at
admission stage itself.
(S. A. DHARMADHIKARI) (HIRDESH)
JUDGE JUDGE
sh
