Madhya Pradesh High Court
K.P Patel vs The State Of Madhya Pradesh on 21 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 21st OF JANUARY, 2025
WRIT PETITION No. 35989 of 2024
K.P PATEL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Raja Bhaiya Tiwari - Advocate for petitioner.
Shri Ved Prakash Tiwari - Government Advocate for respondent/State.
ORDER
The present petition has been filed seeking the following reliefs:-
"(i) Issue a writ in the nature of mandamus directing the
respondents to extend the benefit of 3" higher pay scale after
completion of 28 years of regular service in the light of circular dated
24.01.2008 and 18.07.2008, in the interest of justice.
(ii) Issue a writ in the nature of mandamus directing the respondent No.
2 to decide the pending representation(Annexure P/6) within stipulated
period by extending the benefit of 3 Time Pay Scale in the light of
circular dated24.01.2008 and 18.07.2008, in the interest of justice.
(iii) Issue any other writ, order or direction as this Hon'ble Court deem
fit."
2. It is the case of the petitioner that he initially entered into service in the
respondent/department on the post of Assistant Engineer on 17.04.1971. He
stood retired on attaining the age of superannuation on 30.06.2009. He has
completed 34 years of regular service in the respondent/department. A
circular has been issued by the Finance Department of the State Government
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dated 24.01.2008 for extending the benefit of higher pay scale in the light of
Fundamental Rule 22(D) and rule 22(A)(ii), if the employee is not promoted.
Another circular dated 18.07.2008 has been issued by the Finance
Department wherein the pay scale of Sub Engineer has been fixed by 1st
higher pay scale after completion of 10 years, 2nd higher pay scale after
completion of 20 years of service and 3rd higher pay scale after completion
of 30 years of service. The petitioner approached the authorities requesting
for extending the said benefit, but of no consequence. Thereafter, the
petitioner retired from service on 30.06.2009. Thereafter, this petition has
been filed seeking a direction to the authorities to comply with comply with
the aforesaid circulars and extend the benefit.
3. The case was listed for consideration on 21.11.2024 and petitioner was
granted two weeks time to explain the delay in filing the petition. Thereafter
on 16.12.2024 the amendment application filed by the petitioner was
allowed. The amendment was carried out by the petitioner to the following
effect -
"The petitioner is retired from service w.e.f. 30.06.2009 after completion of 34
years regular service. After retirement he has submitted representation which was
forwarded by the respondent No. 4 but same was not considered. Hence being
aggrieved petitioner further submitted detailed representation before respondents
department by registered post which is still pending for consideration. Hence being
aggrieved petitioner filed writ petition without any delay, if any delay in filing the
present petition may kindly be condoned, in the interest of justice."
4. From the perusal of the amendment incorporated by the petitioner it
does not reflect any explanation being tendered by the petitioner to explain
the delay in approaching the Court. It is an admitted position that the
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petitioner stood retired on 30.06.2009 and thereafter, he has kept quite for a
consideration period of almost 15 years. The document placed on record is
on 16.05.2011. If the said document is also taken note of then the petitioner
has kept quite for a period of more than 13 years for redressal of his claim.
5. The law with respect to the sleeping litigant has been considered by
the Court in catena of cases. The Hon'ble Supreme Court in the case of State
of Orissa & Anr. vs. Mamata Mohanty , (2011) 3 SCC 436 has opined as
under:-
"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."
6 . A Division Bench of this Court in Focus Energy Ltd. (M/s) vs
Government of India, (DB) reported in I.L.R. (2011) M.P. 53 relying upon
judgments of the Hon'ble Supreme Court has observed as under :
"10. Thus, facts stated supra leads to irresistible conclusion that appellant is guilty of
delay and laches. Its conduct disentitles it to any relief. In New Delhi Municipal
Council v. Pan Singh and Others, AIR 2007 SC 1365 the Supreme Court has held
that delay and laches are relevant factors for exercise of equitable jurisdiction. In
Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48 the Supreme
Court has observed that discretionary relief can be provided to one who has not by
his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than
an indolent litigant. In the State of Haryana v. Aravali Khanij Udyog, (2008) 1 SCC
663 it has been held that where third party rights are created, the High Court should
not interfere. Similarly, in Shiba Shankar Mohapatra (supra) it has been held that the
Court exercising public law jurisdiction does not encourage agitation of stale claims
where the right of third parties crystallizes in the interregnum."
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7. The Hon'ble Supreme Court in the case of Karnataka Power Corpn. Ltd.
vs K. Thangappan reported in (2006) 4 SCC 322 has held as follows:
"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
[(1969) 1 SCC 185 : AIR 1970 SC 769] . 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 [(1874) 5 PC 221 : 22 WR
492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v.
M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri
Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC
329] . 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
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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 is further held by the Hon'ble Supreme Court in the case of Ashok
Kumar vs District Magistrate, Basti reported in (2012) 3 SCC 311 that :-
"10. ... It is time and again, stated that a party who has slept over his right since is
not entitled to the discretionary relief of the High Court."
9. If the aforesaid judgements are applied to the facts of the present it is
clear that the petitioner has slept over is right for a considerable period of
almost 15 years and the delay has not been explained by the petitioner. No
judgment is placed before this Court to substantiate the arguments of delay in
approaching this Court.
10. Under these circumstances, no relief can be extended to the
petitioner. The petition sans merit and is accordingly dismissed.
(VISHAL MISHRA)
JUDGE
L.Raj
