Punjab-Haryana High Court
Ashwani Kumar vs Pepsu Road Transport Corporation And ... on 4 April, 2024
Neutral Citation No:=2024:PHHC:045673
2024:PHHC:045673
CWP-7522-2024 -1-
117 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-7522-2024
Date of decision: 04.04.2024
ASHWANI KUMAR ...PETITIONER
VERSUS
PEPSU ROAD TRANSPORT CORPORATION
AND ANR. ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. S.S.Salar Advocate for the petitioner.
****
NAMIT KUMAR ,J. (ORAL)
1. The present petition has been filed under Articles 226/227 of
Constitution of India seeking a writ of mandamus for directing the respondents
to promote the petitioner to the post of Sub-Inspector from the date his juniors
have been promoted, with all the consequential benefits.
2. The grievance of the petitioner is that persons junior to him were
promoted vide order dated 04.01.2018 (Annexure P-2) and 09.11.2018
(Annexure P-4) and the petitioner represented against the said promotion orders
vide representation dated 16.04.2019 (Annexure P-14). However, no action has
been taken by the respondents on the said representation.
3. From the perusal of the file, it is clear that the petitioner has already
stood retired from service. The petition is fraught with incomplete pleadings.
The date of retirement has not been mentioned in the petition. However, it has
been averred in the petition that the date of birth of the petitioner is 01.01.1963.
As per the said date of birth, the petitioner appears to be more than 61 years of
age and whereas the date of retirement in the respondent-Corporation is 58
years.
4. This Court is rather surprised that how a petition like the present one
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can be filed in Court particularly the same is fraught with incomplete pleadings
which amounts to wastage of precious time of the Court. Omission of a single
material fact would lead to an incomplete cause of action and the statement of
petition would become bad.
5. I have heard learned counsel for the petitioner and gone through the
record.
6. The present petition is liable to be dismissed on these two grounds:-
(i) The complete service particulars have not been provided in the
petition and neither, it has been stated that the petitioner has already stood
retired from service in the year 2018. There is concealment on the part of the
petitioner in not disclosing all the material facts. The reliance can be placed on
the judgment rendered by the Hon'ble Supreme Court in SLP (Civil) No.23385
of 2004, titled as G.M.Haryana Roadways Versus Jai Bhagwan and
another, decided on 05.03.2008, the relevant paras whereof are as under:-
"12. We fail to understand how even in a case of this
nature where the State pretended to be so serious in
obtaining a principle of law determined by this Court,
such a delay took place both in filing the writ petition as
also the Special Leave Suppression of material fact is
viewed seriously by the Superior Courts exercising their
discretionary jurisdiction in S.J.S Business Enterprises
(P) Ltd. Vs. State of Bihar and Ors [(2004) 7 SCC 166],
this court on suppression of fact held:
"As a general rule, suppression of a material
fact by a litigant disqualifies such litigant from obtaining
any relief. This rule has been evolved out of the need of the
Courts to deter a litigation from abusing the process of
Court by deceiving it. But the suppressed fact must be a
material one in the sense that had it not been suppressed it
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would have had an effect on the merits of the case."
The said observation was quoted with approval
by one of us in Arunima Baruah v. Union of India (UOI)
and Ors., 2007(3) RCR (Civil) 283: 2007(3) RAJ 379:
[(2007) 6 SCC 120], wherein the question which was
raised was: How far and to what extent suppression of fact
by way of non- disclosure would affect a person's right of
access to justice?
The court notices that so as to enable it to refuse
to exercise its discretionary jurisdiction, the suppression
must be of material fact. What would be a material fact,
suppression whereof would disentitle the Appellant to
obtain a discretionary relief, would depend upon the facts
and circumstances of each case.
Recently, in Prestige Lights Ltd. v. State Bank of India,
2007(4) RCR (Civil) 46: 2007 (4) RAJ 642: [(2007) 8
SCC 449], this court held :
"The High Court is exercising discretionary and
extraordinary jurisdiction under Article 226 of the
Constitution. Over and above, a Court of Law is also a
Court of Equity. It is, therefore, of utmost necessity that
when a party approaches a High Court, he must place all
the facts before the Court without any reservation. If there
is suppression of material facts on the part of the applicant
or twisted facts have been placed before the Court, the
Writ Court may refuse to entertain the petition and dismiss
it without entering into merits of the matter."
Had the aforementioned facts been brought to
the notice of this Court, the Special Leave Petition might
have been dismissed summarily. Even delay in filing the
same might not have been condoned. The Court was not
required to waste so much of time when the State itself
had, for all intent and purport, accepted the award.
13. Furthermore, the State was guilty of serious
delay and latches. We, therefore, are of the opinion that
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for suppression of fact of such a nature and that too at the
instance of the State must be viewed seriously. We hope
and trust that in future the State shall take necessary
measures in pursuing its matter before the Superior Court
keeping in view the conduct expected of a State."
(ii) Further there is a considerable delay in filing the present writ petition
as the petitioner has filed the present writ petition in the year 2024 after a period
of six years, claiming promotion w.e.f. 04.01.2018 and that too without
impugning the orders dated 04.01.2018 (Annexure P-2) and 09.11.2018
(Annexure P-4), when his alleged juniors were promoted. Once the relationship
of master and servant has come to an end on retirement of an employee, the
petitioner cannot agitate the stale issues after 06 years. The Division Bench of
this Court in "H.S. Gill vs Union of India and others", 2016(2) SCT 477, has
held that an employee cannot claim the revised pay scale after retirement once
he has been receiving the pay scale granted by the employer for the last 09
years. The relevant portion from the said judgment, reads as under:-
"14. The petitioner is also not entitled to any
relief on account of principle of delay and laches. He has
been receiving the pay in the pay scale of Rs.6500-10500
right from his transfer to CSIO, Chandigarh i.e. 2.7.2002.
For the first time, he moved the representation on
29.8.2011, so, he kept mum for about 9 years. Thus, the
claim of the petitioner is highly belated and stale."
7. In a recent judgment by the Division Bench of this Court in "Ram
Kumar vs State of Haryana and others", 2022 (3) SCT 346, while rejecting
the claim of the petitioner for counting of his ad hoc service, for the purpose of
seniority/pension and regularization in service on completion of 02 years as per
policy, held that the petition filed by him suffered from gross, inordinate and
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unexplained delay in approaching the High Court. In the said judgment, it has
been held as under:-
"10. What we wish to emphasize, in particular,
is that services of the appellant were regularized w.e.f.
01.04.1997. And, he was assigned a specific seniority
position in the cadre. Whereafter, he continued to serve
the department for nearly twenty five years, before
attaining the age of superannuation in January, 2022.
Needless to assert that during all these years, he availed
all admissible benefits, promotions, and retired as
Inspector. Thus, it rather appears that institution of the
petition by the appellant was speculative and an attempt to
resurrect a stale and dead claim. The Supreme Court, in
New Delhi Municipal Council v. Pan Singh & Ors.,
2007(9) SCC 278, observed:
"15. There is another aspect of the matter which
cannot be lost sight of. 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 cut-off 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 And Others [(2004) 1
SCC 347], Chairman, U.P. Jal Nigam & Anr. v. Jaswant
Singh And Anr. [2006 (12) SCALE 347] and Karnataka
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Power Corpn. Ltd. through its Chairman & Managing
Director and Another v. K. Thangappan and Another
[(2006) 4 SCC 322]"
11. Similarly, in Jagdish Lal & Ors. v. State of
Haryana & Ors., (1997) 6 SCC 538, it was held by the
Supreme Court:
"That apart, as this Court has repeatedly held,
the delay disentitles the party to the discretionary relief
under Article 226 or 32 of the Constitution. It is not
necessary to reiterate all catena of precedents in this
behalf. Suffice it to state that the appellant kept sleeping
over their rights for long and elected to wake up when they
had the impetus from Vir Pal Chauhan and Ajit Singh's
ratios................. Therefore, desperate attempts of the
appellants to re-do the seniority had by them in various
cadres/grades though in the same services according to
1974 Rules or 1980 Rule, are not amenable to judicial
review at this belated stage...."
12. In the wake of the position as sketched out
above, we are dissuaded to interfere with the impugned
order and judgment rendered by the learned single Judge.
The appeal being bereft of merit is, accordingly,
dismissed."
8. The Co-ordinate Bench of this Court in "Prem Nath and others vs
State of Punjab and others", 2018(2) SCT 687, while rejecting the claim of
additional increments of acquisition of higher qualifications has held as under:-
"3. It is the case set up on behalf of the
petitioners that they had all been appointed before
19.02.1979 and had even improved/acquired higher
qualifications before 19.02.1979 and as such there would
be no difference between the employees working with the
Punjab Government, holding corresponding post and the
employees like the petitioners who have worked for Punjab
Privately Managed Recognised Aided Schools. It is also
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the assertion made by counsel representing the petitioners
that their claim would be covered in terms of decision
dated 02.07.2013 rendered by this Court in a bunch of writ
petitions including CWP No.8083 of 1989 titled as Radha
Krishan Narang and others vs. State of Punjab and
others.
4. Having heard counsel for the petitioners at
length, this Court is of the considered view that the claim
of the petitioners would not require any consideration on
merits and the writ petition deserves to be dismissed on the
sole ground of delay and laches.
5. Placed on record and appended at Annexure
P-1 are the particulars of the petitioners. The tabulation at
Annexure P-1 would show that all the petitioners stand
retired on various dates between the years 1995 to 2012.
Out of 32 petitioners in all, 22 petitioners superannuated
more than 10 years back.
6. There is no justification coming forth as
regards the inordinate delay in having approached the
Writ Court. There is also no explanation put forth by the
petitioners as to why the claim raised in the instant
petition was not agitated by the petitioners while they were
in service. The entire thrust of the submissions advanced
by counsel is that similarly situated employees had
approached this Court and have been granted relief.
7. The issue regarding delay in invoking the
extraordinary writ jurisdiction under Article 226 of the
Constitution of India was considered by the Hon'ble
Supreme Court in Chairman, U.P. Jal Nigam and
another v. Jaswant Singh and another (2006)11 SCC
464. In such case, certain employees raised the issue that
they were not liable to be retired at the age of 58 years but
should be permitted to continue in service till they attain
the age of 60 years. Such employees were still in service
when the writ petitions were filed. The writ petitions were
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ultimately allowed. Placing reliance upon such judgment,
some of the employees, who had already superannuated,
filed writ petitions seeking the same benefit. Even such
petitions were allowed by the High Court in terms of
following the earlier judgment. The judgment of the High
Court was challenged before the Apex Court and wherein
while referring to earlier judgments in Rup Diamonds v.
Union of India, (1989)2 SCC 356; "Jagdish Lal v. State
of Haryana, (1997)6 SCC 538 and Government of West
Bengal v. Tarun K. Roy, (2004)1 SCC 347, it was opined
that persons who approached the Court at a belated stage
placing reliance upon the order passed in some other case
earlier, can be denied the discretionary relief on the
ground of delay and laches. The relevant observations
made by the Supreme Court are contained in Paras 5, 6
and 16 of the judgment and are extracted here under:-
"5. So far as the principal issue is concerned,
that has been settled by this court. Therefore, there is no
quarrel over the legal proposition. But the only question is
grant of relief to such other persons who were not vigilant
and did not wake up to challenge their retirement and
accepted the same but filed writ petitions after the
judgment of this court in Harwindra Kumar v. Chief
Engineer, Karmik, (2005) 13 SCC 300. Whether they are
entitled to same relief or not? Therefore, a serious
question that arises for consideration is whether the
employees who did not wake up to challenge their
retirement and accepted the same, collected their post-
retirement benefits, can such persons be given the relief in
the light of the subsequent decision delivered by this
court?
6. The question of delay and laches has been
examined by this court in a series of decisions and laches
and delay has been considered to be an important factor in
exercise of the discretionary relief under Article 226 of the
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Constitution. When a person who is not vigilant of his
rights and acquiesces with the situation, can his writ
petition be heard after a couple of years on the ground
that same relief should be granted to him as was granted
to person similarly situated who was vigilant about his
rights and challenged his retirement which was said to be
made on attaining the age of 58 years. A chart has been
supplied to us in which it has been pointed out that about 9
writ petitions were filed by the employees of the Nigam
before their reitrement wherein their retirement was
somewhere between 30.6.2005 and 31.7.2005. Two writ
petitions were filed wherein no relief of interim order was
passed. They were granted interim order. Thereafter a
spate of writ petitions followed in which employees who
retired in the years 2001, 2002, 2003, 2004 and 2005,
woke up to file writ petitions in 2005 and 2006 much after
their retirement. Whether such persons should be granted
the same relief or not?
xx xx xx
16. Therefore, in case at this belated stage if
similar relief is to be given to the persons who have not
approached the court that will unnecessarily overburden
the Nigam and the Nigam will completely collapse with the
liability of payment to these persons in terms of two years'
salary and increased benefit of pension and other
consequential benefits. Therefore, we are not inclined to
grant any relief to the persons who have approached the
court after their retirement. Only those persons who have
filed the writ petitions when they were in service or who
have obtained interim order for their retirement, those
persons should be allowed to stand to benefit and not
others." [Emphasis supplied].
8. The issue of delay was also dealt with by this
Court in Tarsem Pal vs. Punjab State Power Corporation
Limited and others, 2013 (3)SLR 314. In the case of
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Tarsem Pal(supra), the petitioner was serving as a Clerk
with the respondent-Corporation and had retired on
31.03.2005. Claim in the writ petition was to grant to him
the benefit of proficiency set up in the pay scale on
completion of 23 years of service from the due date as per
policy of the Corporation. During the service career, he
had not agitated the claim for increments. For the first
time, such claim had been made on 28.02.2005 i.e. just one
month prior to superannuation. While non-suiting the
petitioner on account of delay and laches it was held as
follows:-
"11. In the aforesaid judgments, it has been
clearly laid down that discretionary relief in a writ
jurisdiction is available to a party who is alive of his
rights and enforces the same in court within reasonable
time. The judgment in another case does not give a cause
of action to file a writ petition at a belated stage seeking
the same relief. Such petitions can be dismissed on
account of delay and laches. As has already been noticed
above in the present case as well, the petitioner joined
service in the year 1965 and retired in the year 2005, but
raised the issue regarding benefit of proficiency step up in
the pay scale on completion of 23 years of service from the
due date more than five years after his retirement
referring to a judgment of this court and filed the petition
claiming the same relief.
12. The petitioner retired from service on
31.3.2005 and the claim pertaining to the benefit of
proficiency step up, which may be admissible to the
petitioner during his service career, was sought to be
raised more than five years after his retirement, the claim
made at such a late stage deserves to be dismissed on
account of delay and laches only. The petitioner could
raise a grievance about the pay scales admissible to him
or the last pay drawn by him within a reasonable time
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after his retirement. He cannot be permitted to raise the
same at any time on the plea that the same is recurring
cause of action.
13. Considering the enunciation of law, as
referred to above, in my opinion, the petitioner herein is
not entitled to the relief prayed for and the petition
deserves to be dismissed merely on account of delay and
laches."
9. At this stage, counsel appearing for the
petitioners would make an attempt to overcome the
obstacle of delay by placing reliance upon a Full Bench
Judgment of this Court in Saroj Kumar vs. State of
Punjab, 1998(3) SCT 664. Counsel would argue that as
per dictum laid down in Saroj Kumar's case(supra),
matters of pay fixation involve a recurring cause of action
and as such, writ petitions for such claim cannot be
dismissed on the ground of delay and laches and the Court
at the most, may restrict the arrears upto 38 months from
the date of filing of the petition and disallow the arrears
for the period for which even a suit had become time
barred.
10. The reliance placed by counsel upon the
judgment in Saroj Kumar's case, is wholly misplaced. The
observations and aspect of delay in Saroj Kumar's case,
were in the light of the judgment of the Supreme Court in
M.R. Gupta vs. Union of India and others, 1995(4) RSJ
502. In M.R. Gupta's case(supra), it had been
categorically held that so long as an employee "is in
service" a fresh cause of action arises every month when
he is getting his monthly salary on the basis of a wrong
calculation made contrary to rules. It was further held that
the claim to be awarded the correct salary on the basis of
a proper pay fixation "is a right which subsists during the
entire tenure of service".
11. In the present case, however the petitioners
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choose not to agitate their claim while in service. It is
much subsequent to their superannuation that they have
woken up and seek to gain impetus from certain
decisions that may have been rendered in the case of
similarly situated employees.
12. Considering the dictum of law as laid down in
Chariman, U.P. Jal Nigam's case (supra), the petitioners
herein are not entitled to any releif as prayed for and the
petition deserves to be dismissed on the sole ground of
delay and laches.
13. Ordered accordingly."
9. The Hon'ble Supreme Court in State of Uttaranchal and another v.
Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 629, while
considering the issue regarding delay and laches and referring to earlier
judgments on the issue, opined that repeated representations made will not keep
the issues alive. A stale or a dead issue/dispute cannot be got revived even if
such a representation has either been decided by the authority or got decided by
getting a direction from the court as the issue regarding delay and laches is to be
decided with reference to original cause of action and not with reference to any
such order passed. Delay and laches 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, in a situation of that nature, will not be attracted as it is
well known that law leans in favour of those who are alert and vigilant. Even
equality has to be claimed at the right juncture and not on expiry of reasonable
time. Even if there is no period prescribed for filing the writ petition under
Article 226 of the Constitution of India, yet it should be filed within a
reasonable time. An order permitting a junior should normally be challenged
within a period of six months or at the most in a year of such promotion.
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Though it is not a strict rule, the courts can always interfere even subsequent
thereto, but relief to a person, who allows things to happen and then approach
the court and puts forward a stale claim and try to unsettle settled matters, can
certainly be refused on account of delay and laches. Any one who sleeps over
his rights is bound to suffer. An employee who sleeps like Rip Van Winkle and
got up from slumber at his own leisure, deserves to be denied the relief on
account of delay and laches. Relevant paragraphs from the aforesaid judgment
are extracted below:
"13. We have no trace of doubt that the
respondents could have challenged the ad hoc promotion
conferred on the junior employee at the relevant time.
They chose not to do so for six years and the junior
employee held the promotional post for six years till
regular promotion took place. The submission of the
learned counsel for the respondents is that they had given
representations at the relevant time but the same fell in
deaf ears. It is interesting to note that when the regular
selection took place, they accepted the position solely
because the seniority was maintained and, thereafter, they
knocked at the doors of the tribunal only in 2003. It is
clear as noon day that the cause of action had arisen for
assailing the order when the junior employee was
promoted on ad hoc basis on 15.11.1983. In C. Jacob v.
Director of Geology and Mining and another, (2008) 10
SCC 115, a two-Judge Bench was dealing with the concept
of representations and the directions issued by the court or
tribunal to consider the representations and the challenge
to the said rejection thereafter. In that context, the court
has expressed thus:-
"Every representation to the Government for
relief, may not be replied on merits. Representations
relating to matters which have become stale or barred by
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limitation, can be rejected on that ground alone, without
examining the merits of the claim. In regard to
representations unrelated to the Department, the reply
may be only to inform that the matter did not concern the
Department or to inform the appropriate Department.
Representations with incomplete particulars may be
replied by seeking relevant particulars. The replies to such
representations, cannot furnish a fresh cause of action or
revive a stale or dead claim."
10. In Union of India and others v. M. K. Sarkar, (2010) 2 SCC 59,
the Hon'ble Supreme Court, after referring to C. Jacob (supra) has ruled that
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 laches 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 laches.
11. 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. In Karnataka
Power Corpn. Ltd. through its Chairman & Managing Director v. K.
Thangappan and another, (2006) 4 SCC 322, the Court took note of the
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factual position and laid down that when nearly for two decades the respondent
workmen therein had remained silent mere making of representations could not
justify a belated approach.
12. In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396,
it has been opined that making of repeated representations is not a satisfactory
explanation of delay. To the same effect is the judgment in State of Orissa v.
Arun Kumar Patnaik, (1976) 3 SCC 579.
13. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and
others, (2011) 4 SCC 374, a three-Judge Bench of the Hon'ble Supreme Court
reiterated the principle stated in Jagdish Lal v. State of Haryana, (1977) 6 SCC
538 and proceeded to observe that as the respondents therein preferred to sleep
over their rights and approached the tribunal in 1997, they would not get the
benefit of the order dated 7.7.1992.
14. In State of T. N. v. Seshachalam, (2007) 10 SCC 137, the Hon'ble
Supreme Court, testing the equality clause on the bedrock of delay and laches
pertaining to grant of service benefit, has ruled thus:-
"... filing of representations alone would not
save the period of limitation. Delay or laches 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 laches 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. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9
SCC 278, the Court has opined that though there is no period of limitation
provided for filing a writ petition under Article 226 of the Constitution of India,
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yet ordinarily a writ petition should be filed within a reasonable time. In the
said case the respondents had filed the writ petition after seventeen years and
the court, as stated earlier, took note of the delay and laches as relevant factors
and set aside the order passed by the High Court which had exercised the
discretionary jurisdiction.
16. In "Union of India & Anr vs Manpreet Singh Poonam Etc.",
2022(4) SCT 550, the Hon'ble Supreme Court, has held as under:-
"16. It is trite law that once an officer retires
voluntarily, there is cessation of jural relationship
resorting to a "golden handshake" between the employer
and employee. Such a former employee cannot seek to
agitate his past, as well as future rights, if any, sans the
prescription of rules. This would include the enhanced pay
scale. The Respondent in Civil Appeal No.517 of 2017 was
rightly not considered in the DPC in 2012 since he was no
longer in service at the relevant point of time. The High
Court has committed an error in relying upon a circular,
which has got no application at all, particularly in the
light of our finding that we are dealing with a case of
promotion simpliciter as against upgradation of any
nature."
17. To the same effect is the judgment of this Court in "Suraj Mal vs
The State of Haryana and others", 2015(1) SCT 31, wherein the petitioner
was claiming the benefit of ACP scale, after completion of 10 years of regular
service, revised pension and other retiral benefits, after nearly 05 years, after his
retirement and the said claims were rejected on the ground of delay and latches.
18. In view of the above authoritative enunciation of law by Hon'ble the
Supreme Court and this Court, the aforesaid issue as raised in the present writ
petition filed by the petitioner after more than 06 years of his retirement, cannot
be allowed to be agitated, at this stage and consequently, the present petition is
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liable to be dismissed on the ground of delay and latches."
19. In view of the above, the present petition is dismissed with no order
as to costs.
04.04.2024 (NAMIT KUMAR)
renubala JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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