A.Mani vs State Of Tamil Nadu
2022 Latest Caselaw 14321 Mad

                                                                        W.P.No.1674 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.1674 of 2015
                                                      and
                                                M.P.No.1 of 2015

                     1.A.Mani

                     2.Mariammal
                       W/o.A.Mani
                     (P2 substituted as LR of deceased sole
                     petitioner vide order dated 21.07.2022
                     made in WMP.No.17843/2022 in
                     WP.No.1674/2015)                                ...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,
                       Coimbatore District,
                       Coimbatore.                                   ...Respondents

                     1/24



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                                                                                   W.P.No.1674 of 2015

                     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.45633/2013/G.E 2.1 dated
                     04.12.2014 of the 2nd respondent herein confirming the order of the 3rd
                     respondent herein in his Na.Ka.No.11092/2009/K.1, dated 02.09.2014 and
                     quash the same insofar as the petitioner herein is concerned and
                     consequentially direct the 1st respondent herein to forthwith promote the
                     petitioner herein notionally as Block Development Officer w.e.f.
                     01.08.2000, then as Assistant Director of Rural Development and Joint
                     Director on par with juniors by counting entire services of the petitioner
                     herein in the Agricultural Department and extend all monetary benefits
                     including difference in pay in the post of Assistant Director and Joint
                     Director and revised pension with arrears to the petitioners herein 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 Block Development Officer,

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Assistant Director of Rural Development and Joint 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.

2. Pending the Writ Petition, the original petitioner namely A.Mani

expired and his legal hire, namely Mariammal, has been brought on record.

For the sake of convenience, the deceased original petitioner is referred to

as 'the petitioner'.

3. The petitioner states that the Government has sanctioned 415 posts

of Village Level Workers in the year 1965 for implementing Intensive

Agricultural Area Programme for stepping up Agriculture Production in

various blocks. The petitioner was appointed as Agricultural Assistant

(Village Level Worker) on 08.10.1971 in the Office of the Deputy Director

of Agriculture. The Government took a decision to absorb the Village Level

Workers as permanent employees and accordingly, the petitioner was also

absorbed as a permanent employee in the post of Gramasevak Grade-II in

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the Rural Development Department.

4. The petitioner was transferred to Rural Development Department

for appointment as Gramasevak Grade-II and posted at Kalikudi Panchayat

Union, Madurai District on 01.03.1979. Thereafter, he was transferred to his

native District at Coimbatore and posted as Gramasevak Grade-II. The

transfer to the native District was made based on his request. The service of

the petitioner was regularized in the post of Gramasevak Grade-II and the

petitioner was admittedly promoted to the post of Assistant, Extension

Officer and Deputy Block Development Officer. The petitioner retired from

service on attaining the age of superannuation.

5. 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

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

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

to the level of Joint Director of Rural Development.

6. 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. Thus, the

petitioner herein also submitted a representation to extend the said benefits,

as the Division Bench also made an observation that the Government should

be a model employer and the seniority should be revised in respect of other

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similarly placed persons. Based on the representation, the District Collector

also passed an order in proceedings dated 11.03.2011, extending the benefit

of revision of seniority and other consequential benefits including notional

promotion. However, the said order has not been implemented by the

competent authorities and thereby, they have failed to be a moder employer.

7. The learned counsel for the petitioner contended that in view of the

fact that the order passed by the District Collector was not implemented, the

petitioner approached this Court by filing W.P.No.30815 of 2013 and this

Court passed an order on 13.11.2013, directing the authorities to consider

the representation of the petitioner and pass orders within a period of 16

weeks. Pursuant to the order of this Court, the respondents have passed the

impugned order, 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.

8. The contention of the petitioner is that his grievance regarding the

revision of seniority and notional promotion was considered by the Division

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Bench of this Court and pursuant to the order of the Division Bench, the

District Collector also passed an order in favour of the petitioner, which was

also not implemented. Thus, the petitioner approached this Court by filing a

Writ Petition and this Court directed the respondents to consider the

representation of the petitioner. Thereafter, the respondents have rejected

the claim of the petitioner for revision of seniority and notional promotion

with consequential benefits on par with other similarly placed employees.

9. 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 in the year 1990 itself. He was regularly

absorbed from the post 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

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approach cannot be a ground to extend the similar benefits and the Writ

Petition is to be rejected on the ground of laches.

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

Assistant, Extension Officer and Deputy 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

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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.

11. 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

get the retrospective promotion. Such belated approach cannot be

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

Government also.

12. Now the seniority fixed in the year 1990 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

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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 during the eve of his retirement, he has approached

the Court and the Court directed the authorities to consider the

representation, which was rejected by the competent authorities.

13. 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

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 approached this Court for the

purpose of considering his representation. This Court passed an order to

consider the representation and pursuant to the said directions, the

authorities competent issued the impugned order of merits. The said

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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 and Deputy Block Development Officer. Therefore,

such an approach of the litigants in getting an order to consider the

representation and thereafter challenge 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 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.

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14. 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 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

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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 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

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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 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

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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."

15. 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 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

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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 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

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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 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

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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."

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

Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation reported in

(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

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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:

“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

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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."

17. 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, pursuant to the

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directions issued by this Court to consider the representation and pass

orders, the actual delay caused at the instance of the petitioner cannot be

condoned. More so, the directions sought for by the petitioner to implement

the order of the District Collector, which was issued in the year 2013, also

cannot be considered, as such an order itself was passed belatedly by the

District Collector, which was subsequently not accepted by the competent

authorities. Thus, all these mitigating factors are to be considered for the

purpose of granting the relief.

18. 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

Petitions. A Government employee is expected to redress his grievance

within a reasonable period of time and he cannot be a fence sitter and

institute litigations after a prolonged period on the ground that similarly

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placed persons were granted the benefits. Such an approach was held as

impermissible by the Hon'ble Supreme Court and therefore, this Court do

not find any reason to interfere with the orders of the respondents at this

length of time.

19. Accordingly, the Writ Petition stands dismissed. No costs.

Consequently, connected miscellaneous petition is closed.

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To

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

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

3.The District Collector, Coimbatore District, Coimbatore.

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S.M.SUBRAMANIAM, J.

hvk

W.P.No.1674 of 2015

11.08.2022

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