Madras High Court

D.G.Anderson vs State Of Tamil Nadu on 11 August, 2022

                                                                               W.P.No.38425 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 11.08.2022

                                                      CORAM

                                  THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

                                               W.P.No.38425 of 2015

                     D.G.Anderson                                           ...Petitioner

                                                        -Vs-

                     1.State of Tamil Nadu,
                       Rep. by its Secretary to Government,
                       Rural Development and Panchayat
                            Raj Department,
                       Fort St. George, Chennai - 9.

                     2.Director,
                       Commissionerate of Rural Development
                           and Panchayat Raj,
                       Panagal Building, Chennai - 15.

                     3.District Collector,
                       Trichy District,
                       Trichy.                                              ...Respondents

                     Prayer: Writ Petition filed under Article 226 of the Constitution of India
                     praying to issue a Writ of Certiorarified Mandamus, calling for the entire
                     records relating to the proceedings in Na.Ka.No.11110/2014/G.E 2.1 dated
                     19.05.2015 of the 2nd respondent herein and the consequential order dated


                     1/22



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                                                                                   W.P.No.38425 of 2015

                     22.09.2015 of the 3rd respondent herein in his Na.Ka.No.1/2560/2011, quash
                     the same and consequentially direct the respondents herein to forthwith
                     count the seniority of the petitioner herein in the post of Rural Welfare
                     Officer Grade-I w.e.f. 01.10.1978 and accordingly grant notional promotion
                     in higher posts viz. Extension Officer, Deputy Block Development Officer,
                     Block Development Officer and then Assistant Director with arrears of
                     difference in pay and pension and all other monetary benefits in accordance
                     with law.

                                       For Petitioner   :     Mr.V.R.Rajasekaran

                                       For Respondents :      Mr.S.Silambanan,
                                                              Additional Advocate General
                                                              assisted by Mrs.S.Anitha,
                                                              Special Government Pleader


                                                            ORDER

The Writ on hand has been instituted, questioning the order of

rejection, rejecting the claim of the petitioner for notional promotion with

retrospective effect in various cadres as Extension Officer, Deputy Block

Development Officer, Block Development Officer and Assistant Director on

par with his junior by counting the entire service of the petitioner in the

Agriculture Department and extend all monetary benefits including revised

pension with arrears.

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2. The petitioner states that pursuant to the decision taken by the

Government to absorb 415 Village Level Workers working in Agricultural

Department as Gramasevak Grade-II, he was sent for a pre-service training.

After completion of training for a period of 1 year, the petitioner was

absorbed as Gramasevak Grade-II in Kadayam Panchayat Union,

Tirunelveli District. Thereafter, the petitioner was transferred to Trichy

District Panchayat Development Unit based on his request.

3. The service of the petitioner was regularized in the post of

Gramasevak Grade-II and the petitioner was admittedly promoted to the

post of Extension Officer and Deputy Block Development Officer and

Block Development Officer. The petitioner retired from service on attaining

the age of superannuation.

4. The grievance of the petitioner is that the period of service

rendered by him as Village Level Worker was not taken into consideration

for the purpose of fixation of seniority and to calculate the qualifying

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service for pensionary benefits. In the event of regularizing the service in

the post of Village Level Worker, the petitioner would have got an

opportunity of further promotion to the post of Assistant Director of Rural

Development and Joint Director, as his juniors were already promoted upto

to the level of Joint Director of Rural Development.

5. The learned counsel for the petitioner mainly contended that the

petitioner, on his absorption as Gramasevak Grade-II, joined in the said post

and served continuously and retired from service. The similarly placed

persons, during the relevant point of time, made a representation to the

authorities to revise their seniority by taking into consideration the services

rendered by them as Village Level Workers. The other similarly placed

persons filed Original Application before the Tamil Nadu Administrative

Tribunal and the matter went upto the Division Bench of this Court and the

Division Bench passed an order on 19.04.2005 in W.P.Nos.19960 to 19962

of 1998. Based on the judgement of the Division Bench, the writ petitioners

therein were granted the benefit of revision of seniority and retrospective

promotion on notional basis with prospective monetary benefits.

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Accordingly, the third respondent-District Collector had issued orders

revising the petitioner's seniority and notionally promoted him to the posts

of Rural Welfare Officer Grade-I/Assistant, Extension Officer, Deputy

Block Development Officer and Block Development Officer.

6. The learned counsel for the petitioner contended that the third

respondent has not applied G.O.Ms.No.487, Personnel and Administrative

Reforms Department, dated 18.04.1979 while fixing the seniority of the

petitioner. Thus, the petitioner submitted a representation on 14.08.2015 to

revise the seniority and to promote him notionally to the next higher posts.

Pursuant to the representation, the respondents passed the impugned orders,

rejecting the claim of the petitioner for grant of revision of seniority and

consequential notional promotion with monetary benefits. Thus, the

petitioner is constrained to move the present Writ Petition.

7. The learned Additional Advocate General appearing on behalf of

the respondents objected the said contentions by stating that the petitioner

was aware of his seniority position. He was regularly absorbed from the post

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of Village Level Worker to Gramasevak Grade-II and after his appointment,

his seniority was fixed in the bottom in the District in which he was posted

and thus, the petitioner was very much aware of the seniority position

during the relevant point of time. The petitioner had not agitated the issue

during the point when his seniority was fixed and only after the order passed

by the Court in respect of other persons, the petitioner has approached this

Court and therefore, such belated approach cannot be a ground to extend the

similar benefits and the Writ Petition is to be rejected on the ground of

laches.

8. Considering the arguments, this Court is of the considered opinion

that the petitioner has reached the age of superannuation and now receiving

pension. The Writ Petition was filed only after his retirement. The claim

pertains to the year when he was absorbed as Gramasevak Grade-II by way

of a Government policy. Admittedly, the petitioner was appointed as Village

Level Worker and he was absorbed as Gramasevak Grade-II in the regular

establishment in the Rural Development Department and thereafter, his

seniority was fixed as a last candidate in the District in which he was posted

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and based on his seniority, he was promoted to the higher posts of Assistant,

Extension Officer, Deputy Block Development Officer and Block

Development Officer. When the petitioner was promoted to the post of

Assistant, he was very much aware of his seniority, because the promotion

to the post of Assistant itself was granted based on his seniority fixed in the

feeder category of Gramasevak Grade-II. Thereafter, even when the

petitioner was promoted to the post of Deputy Block Development Officer,

he was aware of his seniority. Thus, once an employee promoted is aware of

his seniority in the feeder category post and he has also accepted the

promotions on various levels, thereafter approaching the Court of law

belatedly cannot be a ground to entertain the Writ Petition in order to grant

the benefits with retrospective effect.

9. A Government servant, aggrieved in respect of the fixation of

seniority or promotion, has to approach the competent authorities and the

Court of law within a reasonable period of time. They cannot wait for the

issues to be decided by the Courts in respect of the litigations filed by other

persons and thereafter approach the Court belatedly and make an attempt to

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get the retrospective promotion. Such belated approach cannot be

encouraged by the Court as the said delay would cause prejudice to the

Government also.

10. Now the seniority fixed is sought to be revised, after getting two

or three levels of promotions by the petitioner. Atleast at the first level

promotion to the post of Assistant when the petitioner came to know about

his seniority fixed in the post of Gramasevak Grade-II, he should have

raised an objection and approached the higher authorities and the Court of

law for redressal of his grievance. Contrarily, he has waited for a very long

period and approached the authorities, who in turn rejected the claim of the

petitioner.

11. The practice of restoring the lapsed cause of action at no

circumstance be encouraged by the Courts. In the present case, the Division

Bench passed an order in the year 2005, after a prolonged adjudication by

few of the employees from the year 1983 and 1984 onwards. Admittedly,

the petitioner was not a party to those proceedings before the Tribunal and

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also before the High Court. Under those circumstances, the petitioner has

not made any attempt to redress his grievance and after a lapse of many

years, he had sent a representation and the authorities competent issued the

impugned order of merits. The said impugned order cannot be construed as

a cause of action arouse with reference to the date on which the cause arose.

The cause arouse for the petitioner was with reference to the date on which

the seniority was fixed on the petitioner or atleast at the time of first level

promotion to the post of Assistant. Taking into consideration the period

during which the cause for revision of seniority arose and further

considering the fact that the Service Rule also contemplates that the

seniority disputes are to be raised within a period of 3 years, the petitioner

had failed to do so and he got promotion to the posts of Assistant, Extension

Officer, Deputy Block Development Officer and Block Development

Officer. Therefore, such an approach of the litigants in challenging the

orders passed by the authorities on merits cannot provide a new cause of

action, so as to circumvent the actual delay caused for redressing the

grievance within a reasonable period of time. Such Writ Petitions or

representations are to be construed as the litigations instituted for the

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purpose of restoring the lapsed cause of action and such a practice can never

be encouraged by the Courts. In the event of entertaining such litigations,

the same would cause prejudice to the interest of the Government as it

involves financial implications.

12. Regarding the delay and laches and with regard to the persons

who have not approached the Court of law within a reasonable period of

time, the Hon'ble Supreme Court, in the case of Chairman/Managing

Director, U.P. Power Corporation Ltd. and others Vs. Ram Gopal

reported in (2020) SCC Online SC 101, held as follows:-

"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 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 vs. State of Tamil Nadu, (1975) 1 SCC 152 held as follows:

"2. ... if the appellant was aggrieved by it he should have approached the Court even in the

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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 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......"

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 laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect

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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, (2009) 2 SCC 479 this Court 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 laches 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 vs. Union of India, (2012) 7 SCC 610 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 laches. It is a matter of great

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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."

.....

19. 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."

13. Likewise, in the case of State of Uttar Pradesh and others Vs.

Arvind Kumar Srivastava and others reported in (2015) 1 SCC 347, the

Hon'ble Apex Court held as follows:-

"23) The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:

(1) 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

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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 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.

(2) However, this principle is subject to well recognized exceptions in the form of laches 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 laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

(3) However, this exception may not apply in those

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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 person. 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 & Ors. v. Union of India (supra). 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 laches and delays or acquiescence.

24) Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June

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22, 1987. The respondents before us did not chalelnge these cancelleation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above."

14. The Hon'ble Supreme Court, in the case of Rushibhai

Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation reported in

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(2022) SCC Online SC 641, held as follows:-

"The doctrine of delay and laches, or for that matter statutes of limitation, are considered to be statutes of repose and statutes of peace, though some contrary opinions have been expressed. The courts have expressed the view that the law of limitation rests on the foundations of greater public interest for three reasons, namely,

(a) that long dormant claims have more of cruelty than justice in them;

(b) that a defendant might have lost the evidence to disapprove a stale claim; and

(c) that persons with good causes of action (who are able to enforce them) should pursue them with reasonable diligence.

......

Referring to the principle of delay and laches, this Court, way back in Moons Mills Ltd. v. M.R. Mehar, President, Industrial Court, Bombay and Others, AIR 1967 SC 1450 had referred to the view expressed by Sir Barnes Peacock in The Lindsay Petroleum Company AND. (sic) v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp (1874) LR 5 PC 221, in the following words:

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“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."

In the case of Union of India and Others v. Tarsem Singh, (2008) 8 SCC 648, while referring to the decision in Shiv Dass v. Union of India and Others, (2007) 9 SCC 274 quoted the following passages from the latter decision:

"8...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."

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15. In view of the fact that the petitioner has not approached the

Court of law and redressed his grievance within a reasonable period of time

and now after his retirement instituted the litigation, the actual delay caused

at the instance of the petitioner cannot be condoned. Thus, all these

mitigating factors are to be considered for the purpose of granting the relief.

16. If the Courts have permitted such prolonged adjudication of the

issues one after another on the ground that similarly placed persons were

granted the benefits, there is no end for the issues and such a delay

undoubtedly would cause prejudice to the interest of the Government and

the financial constraints of the State. Thus, all these aspects are to be

considered by the Constitutional Courts while entertaining such Writ