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CASE NO.:

Appeal (civil) 4790 of 2006

PETITIONER:

Chairman, U.P.Jal Nigam & Anr.

RESPONDENT:

Jaswant Singh & Anr.

DATE OF JUDGMENT: 10/11/2006

BENCH:

Dr. AR. LAKSHMANAN & A.K.MATHUR

JUDGMENT:

J U D G M E N T

[Arising out of S.L.P.(c) No.6207 of 2006]

WITH

CIVIL APPEAL NOs.4791-4887 of 2006

[ Arising out of S.L.P. (c) Nos. 6296, 6380, 6382, 6384,

6386, 6388, 6389, 6390, 6391, 6392, 6393, 6395, 6396,

6397, 6398, 6400, 6401, 6403, 6404, 6405, 6406, 6408,

6409, 6415, 6418, 6431, 6432, 6433, 6437, 6445,6448,

6475, 6864, 6914, 7357, 7394, 8976, 9265, 11828,

9373, 10089,5208, 5321, 5322, 5339, 5340, 5343,5360,

5369, 5373,5379,5383,7122,12975, 9968, 9980, 11830,

9998, 10003, 10072, 12000, 12003, 12001, 11952,

11953, 12892, 12915, 14354, 12917, 12918, 12970,

14350, 14355, 14349, 13225, 14377 , 14348, 14352,

14353, 14816, 14817, 8587, 8619, 8633, 8676, 8726,

8727, 8733, 8737, 8752, 8753, 8801, 8810, 11870,

11871, 11866 & 11860 of 2006]

A.K. MATHUR, J.

Leave granted.

All this batch of appeals involve similar questions of law and

fact, therefore, they are disposed of by this common order.

All these respondents are the employees of the Uttar Pradesh

Jal Nigam ( hereinafter to be referred to as 'the Nigam') and they

were retired on attaining the age of superannuation at 58 years.

Some of them filed writ petitions in the High Court of Judicature at

Allahabad challenging the retirement of the employees of the Nigam

on attaining the age of 58 years whereas the State Government

employees were allowed to continue up to the age of 60 years and

therefore, they should also be allowed to continue up to the age of 60

years. The writ petitions filed before the High Court failed and

against that Civil Appeal No.7840 of 2002 and batch of other appeals

were filed before this Court. This Court disposed of the case of

Harwindra Kumar along with other appeals and held that employees

of Nigam are entitled to continue up to 60 years. This has been

reported in (2005) 13 SCC 300. The operative portion of the said

judgment reads as under :

" 10. For the foregoing reasons, we are of

the view that so long as Regulation 31 of the

Regulations is not amended, 60 years which is the

age of superannuation of government servants

employed under the State of Uttar Pradesh shall be

applicable to the employees of the Nigam. However,

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it would be open to the Nigam with the previous

approval of the State Government to make suitable

amendment in Regulation 31 and alter the service

conditions of employees of the Nigam, including their

age of superannuation. It is needless to say that if it

is so done, the same shall be prospective.

11. For the foregoing reasons, the appeals

as well as writ petitions are allowed, orders passed

by the High Court dismissing the writ petitions as well

as those by the Nigam directing that the appellants of

the civil appeals and the petitioners of the writ

petitions would superannuate upon completion of the

age of 58 years are set aside and it is directed that in

case the employees have been allowed to continue

up to the age of 60 years by virtue of some interim

order, no recovery shall be made from them but in

case, however, they have not been allowed to

continue after completing the age of 58 years by

virtue of erroneous decision taken by the Nigam for

no fault of theirs, they would be entitled to payment

of salary for the remaining period up to the age of 60

years which must be paid to them within a period of

three months from the date of receipt of copy of this

order by the Nigam. There shall be no order as to

costs."

It appears that during the pendency of the appeals and writ

petitions before this Court and after disposal of the same by this

Court, a spate of writ petitions followed in the High Court by the

employees who had retired long back. Some of the petitions were

filed by the employees who retired on attaining the age of 58 years

long back. However, some were lucky to get interim orders allowing

them to continue in service. Number of writ petitions were filed in the

High Court in 2005 on various dates after the judgment in the case of

Harwindra Kumar (supra) and some between 2002 and 2005. All

those writ petitions were disposed of in the light of the judgment in the

case of Harwindra Kumar (supra) and relief was given to them for

continuing in service up to the age of 60 years. Hence, all these

appeals arise against various orders passed by the High Court from

time to time.

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 the case of Harwindra Kumar (supra). 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 ?

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 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 retirement wherein their retirement was

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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 & 2006 much after

their retirement. Whether such persons should be granted the same

relief or not ?

Learned senior counsel for the appellants has invited our

attention to various decisions to impress upon that persons who are

guilty of such laches and acquiesced with the situation should not be

granted any relief because it is going to cost the Nigam a heavy

financial burden to the tune of Rs.17,80, 43,108/-. Therefore, relief

should be confined to those persons who were continuing in service

and filed their writ petitions in time but not to all and sundry who

woke up to file the writ petitions much after their retirement. In this

connection, our attention was invited to a decision of this Court in the

case of M/s. Rup Diamonds & Ors. v. Union of India & Ors. reported

in (1989) 2 SCC 356, wherein their Lordships observed that those

people who were sitting on the fence till somebody else took up the

matter to the court for refund of duty, cannot be given the benefit. In

that context, their Lordships held as follows :

" Petitioners are re-agitating claims which they had

not pursued for several years. Petitioners were not

vigilant but were content to be dormant and chose to

sit on the fence till somebody else's case came to be

decided. Their case cannot be considered on the

analogy of one where a law had been declared

unconstitutional and void by a court, so as to enable

persons to recover monies paid under the

compulsion of a law later so declared void. There is

also an unexplained, inordinate delay in preferring

the present writ petition which is brought after a year

after the first rejection. As observed by the Court in

Durga Prashad case, the exchange position of this

country and the policy of the government regarding

international trade varies from year to year. In these

matters it is essential that persons who are aggrieved

by orders of the government should approach the

High Court after exhausting the remedies provided

by law, rule or order with utmost expedition.

Therefore, these delays are sufficient to persuade

the Court to decline to interfere. If a right of appeal is

available, this order rejecting the writ petition shall

not prejudice petitioners' case in any such appeal. "

Our attention was also invited to a decision of this Court in the

case of State of Karnataka & Ors. v. S.M.Kotrayya & Ors. reported in

(1996) 6 SCC 267. In that case the respondents woke up to claim

the relief which was granted to their colleagues by the Tribunal with

an application to condone the delay. The Tribunal condoned the

delay. Therefore, the State approached this Court and this Court after

considering the matter observed as under :

" Although it is not necessary to give an

explanation for the delay which occurred within the

period mentioned in sub-section (1) or (2) of Section

21, explanation should be given for the delay which

occasioned after the expiry of the aforesaid

respective period applicable to the appropriate case

and the Tribunal should satisfy itself whether the

explanation offered was proper. In the instant case,

the explanation offered was that they came to know

of the relief granted by the Tribunal in August 1989

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and that they filed the petition immediately thereafter.

That is not a proper explanation at all. What was

required of them to explain under sub-sections (1)

and (2) was as to why they could not avail of the

remedy of redressal of their grievances before the

expiry of the period prescribed under sub-section (1)

or (2). That was not the explanation given. Therefore,

the Tribunal was wholly unjustified in condoning the

delay."

Similarly, in the case of Jagdish Lal & Ors. v. State of Haryana

& ors. reported in (1997) 6 SCC 538, this Court reaffirmed the rule if a

person chose to sit over the matter and then woke up after the

decision of the Court, then such person cannot stand to benefit. In

that case it was observed as follows :

" The delay disentitles a party to

discretionary relief under Article 226 or Article 32 of

the Constitution. The appellants kept sleeping over

their rights for long and woke up when they had the

impetus from Vir Pal Singh Chauhan case. The

appellants' desperate attempt to redo the seniority is

not amenable to judicial review at this belated stage."

In the case of Union of India & Ors. v. C.K. Dharagupta & Ors.

reported in (1997) 3 SCC 395, it was observed as follows :

" We, however, clarify that in view of our

finding that the judgment of the Tribunal in R.P.Joshi

gives relief only to Joshi, the benefit of the said

judgment of the Tribunal cannot be extended to any

other person. The respondent C.K.Dharagupta (since

retired) is seeking benefit of Joshi case. In view of

our finding that the benefit of the judgment of the

Tribunal dated 17-3-1987 could only be given to

Joshi and nobody else, even Dharagupta is not

entitled to any relief."

In the case of Government of W.B. v. Tarun K. Roy & Ors.

reported in (2004) 1 SCC 347, their Lordships considered delay as

serious factor and have not granted relief. Therein it was observed as

follows :

" The respondents furthermore are not

even entitled to any relief on the ground of gross

delay and laches on their part in filing the writ

petition. The first two writ petitions were filed in the

year 1976 wherein the respondents herein

approached the High Court in 1992. In between 1976

and 1992 not only two writ petitions had been

decided, but one way or the other, even the matter

had been considered by this Court in Debdas Kumar.

The plea of delay, which Mr.Krishnamani states,

should be a ground for denying the relief to the other

persons similarly situated would operate against the

respondents. Furthermore, the other employees not

being before this Court although they are ventilating

their grievances before appropriate courts of law, no

order should be passed which would prejudice their

cause. In such a situation, we are not prepared to

make any observation only for the purpose of grant

of some relief to the respondents to which they are

not legally entitled to so as to deprive others there

from who may be found to be entitled thereto by a

court of law."

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The statement of law has also been summarized in Halsbury's

Laws of England, Para 911 , pg. 395 as follows :

" In determining whether there has been

such delay as to amount to laches, the chief points to

be considered are :

(i) acquiescence on the claimant's part;

and

(ii) any change of position that has

occurred on the defendant's part.

Acquiescence in this sense does not mean

standing by while the violation of a right is in

progress, but assent after the violation has been

completed and the claimant has become aware of it.

It is unjust to give the claimant a remedy where, by

his conduct, he has done that which might fairly be

regarded as equivalent to a waiver of it; or where by

his conduct and neglect, though not waiving the

remedy, he has put the other party in a position in

which it would not be reasonable to place him if the

remedy were afterwards to be asserted. In such

cases lapse of time and delay are most material.

Upon these considerations rests the doctrine of

laches. "

In view of the statement of law as summarized above, the

respondents are guilty since the respondents has acquiesced in

accepting the retirement and did not challenge the same in time. If

they would have been vigilant enough, they could have filed writ

petitions as others did in the matter. Therefore, whenever it appears

that the claimants lost time or while away and did not rise to the

occasion in time for filing the writ petitions, then in such cases, the

Court should be very slow in granting the relief to the incumbent.

Secondly, it has also to be taken into consideration the question of

acquiescence or waiver on the part of the incumbent whether other

parties are going to be prejudiced if the relief is granted. In the

present case, if the respondents would have challenged their

retirement being violative of the provisions of the Act, perhaps the

Nigam could have taken appropriate steps to raise funds so as to

meet the liability but by not asserting their rights the respondents

have allowed time to pass and after a lapse of couple of years, they

have filed writ petitions claiming the benefit for two years. That will

definitely require the Nigam to raise funds which is going to have

serious financial repercussion on the financial management of the

Nigam. Why the Court should come to the rescue of such persons

when they themselves are guilty of waiver and acquiescence.

As against this, our attention was invited to a decision of this

Court in the case of Dayal Singh & Ors. v. Union of India & Ors.

reported in (2003) 2 SCC 593. In that case their Lordships observed

that when the High Court exercised discretion and condoned the

delay, it is not proper for the Supreme Court at the SLP stage to set

aside the High Court's order on that ground alone and more so,

where the impugned judgment is legally sustainable. This case does

not provide any assistance to the respondents.

Learned counsel for the appellants has also pointed out that at

this belated stage if the relief is given to the respondents who have

retired and accepted the retirement, that will cause a huge burden to

the Nigam to the tune of Rs.17,80,43,108/- and there is no sufficient

funds for incurring such a huge amount at this belated stage. This will

completely ruin the financial condition of the Nigam if all the persons

who were not vigilant and did not take up their cause before the

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Court, it would prove a great set back to the Nigam. In this regard, a

reference was made to a decision of this Court in the case of

Krishena Kumar v. Union of India & Ors. etc. etc. reported in (1990) 4

SCC 207. In that case the question was to grant pensionary benefit

to the provident fund holders of the railways. A submission was made

if the Court feels that a positive direction cannot be given to the

government, it was prayed that at least an option should be given to

the respondents either to withdraw the benefit of switching over to

pension from everyone or to give it to the petitioners as well, so that

the discrimination must go. This Court negatived the submission and

it was observed as follows :

" We are not inclined to accept either of

these submissions. The PF retirees and pension

retirees having not belonged to a class, there is no

discrimination. In the matter of expenditure includible

in the Annual Financial Statement, this Court has to

be loath to pass any order or give any direction,

because of the division of functions between the

three co-equal organs of the government under the

Constitution."

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. We have been given a chart of those nine persons, who

filed writ petitions and obtained stay & are continuing in service.

They are as follows:

1. Shri Bhawani Sewak Shukla

2. Shri Vijay Bahadur Rai

3. Shri Girija Shanker

4. Shri Yogendra Prakash Kulshersht

5. Shri Vinod Kumar Bansal

6. Shri Pradumn Prashad Mishra

7. Shri Banke Bihari Pandey

8. Shri Yashwant Singh

9. Shri Chandra Shekhar

And the following persons filed Writ Petitions before retirement

but no stay order granted.

1. Shri Gopal Singh Dangwal (W/P No. 35384/05 vide

order dated 5.5.2005)

2. Shri R.R. Gautam (W/P No. 45495/05 vide order

dated 15.6.05)

The benefits shall only be confined to above mentioned

persons who have filed writ petitions before their retirement or they

have obtained interim order before their retirement. The appeals filed

against these persons by the Nigam shall fail and the same are

dismissed. Rest of the appeals are allowed and orders passed by

the High Court are set aside. There would be no order as to costs.

It is submitted that contempt petitions were filed before

the High Court. In view of the order passed in this batch of appeals,

the contempt petitions will not survive and the same are dismissed.

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