Chief Justice's Court

e-Court Fresh List

Serial No.3

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

***

SPECIAL APPEAL DEFECTIVE No. - 647 of 2021

(In Writ A No. 5302 of 2021)

Shimla Devi ... Appellant

Through :-Mr. Lal Chandra Srivastava, Advocate

Vs.

State of U.P. through Principal Secretary Home Department

and others

... Respondents

Through :- Mr. Ankit Gaur, State Law Officer

Coram : Hon'ble Rajesh Bindal, Chief Justice

Hon'ble Piyush Agrawal, Judge

ORDER

Rajesh Bindal, CJ

1. The present intra-court appeal has been filed against the

order dated July 7, 2021 passed by the learned Single Judge whereby

the writ petition filed by the appellant was dismissed. The appellant

had approached this Court by filing the writ petition seeking a

direction to the respondents to consider and decide the appeal dated

December 30, 1995 filed by her late husband, who was dismissed

from service. The writ petition was dismissed on account of delay and

laches.

2. The learned counsel for the appellant submitted that

appellant is an illiterate lady. Late husband of the appellant was

dismissed from service illegally merely on account of unauthorised

absence. The family is practically starving. The only prayer made

before the learned Single Judge was for disposal of statutory appeal

filed by her late husband. The prayer being innocuous, interference of

Special Appeal Defective No. - 647 of 2021

2

this Court was required as the appellate authority had failed to

discharge its duty.

3. After hearing the learned counsel for the appellant, we do

not find any error in the order passed by the learned Single Judge. A

perusal of the impugned order passed by the learned Single Judge

shows that the late husband of the appellant was dismissed from

service on account of his unauthorised absence of over 678 days, vide

order dated December 21, 1990. The appeal was stated to have been

filed against the order of dismissal more than 5 years thereafter on

December 30, 1995 in case the same was filed at that time. There is

nothing on record to show that the appeal was ever pursued by the late

husband of the appellant till such time he was alive. The case of the

appellant is that her husband died in the year 1999. It is also apparent

from the record that the representation dated December 05, 1999 was

filed by the appellant to the then Chief Minister of the State which

was followed by another representation dated August 08, 2018. The

aforesaid facts also, even if taken on their face value, show that late

husband of the appellant and the appellant herself were moving at

their own sweet will and not pursuing the remedy available to them at

the relevant time. Firstly, there was huge delay in filing of appeal in

case it was filed and secondly keeping mum for a period of about 25

years before this Court was approached.

4. The learned Single Judge has dismissed the writ petition

on account of delay and laches.

5. Different facets of issue regarding delay and laches in

filing the petition had been subject matter of consideration before

Hon'ble the Supreme Court on number of occasions, wherein it has

been consistently opined that the party can be denied relief if he sleeps

over the matter.

Special Appeal Defective No. - 647 of 2021

3

6. In State of Uttaranchal and another v. Sri Shiv

Charan Singh Bhandari and others

1

, Hon'ble the Supreme Court,

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 even 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. Such an order promoting a junior should normally be

challenged within a period of six months or at the most in a year of

such promotion. 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 relief

on account of delay and laches. Anyone 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

12013 (6) SLR 629

Special Appeal Defective No. - 647 of 2021

4

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 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

Special Appeal Defective No. - 647 of 2021

5

particulars. The replies to such representations,

cannot furnish a fresh cause of action or revive a

stale or dead claim."

14.In Union of India and others v. M. K. Sarkar,

(2010) 2 SCC 59, this 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.

15.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 factual position and laid

down that when nearly for two decades the respondent-

Special Appeal Defective No. - 647 of 2021

6

workmen therein had remained silent mere making of

representations could not justify a belated approach.

16.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. The said principle was reiterated in State of

Orissa v. Arun Kumar Patnaik, (1976) 3 SCC 579.

17.In Bharat Sanchar Nigam Limited v. Ghanshyam

Dass (2) and others, (2011) 4 SCC 374, a three-Judge

Bench of this 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.

18.In State of T. N. v. Seshachalam, (2007) 10 SCC

137, this 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."

Special Appeal Defective No. - 647 of 2021

7

19.There can be no cavil over the fact that the claim of

promotion is based on the concept of equality and

equitability, but the said relief has to be claimed within a

reasonable time. The said principle has been stated

in Ghulam Rasool Lone v.State of Jammu and Kashmir

and another, (2009) 15 SCC 321.

20.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, 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.

21.Presently, sitting in a time machine, we may refer

to a two Judge Bench decision in P. S. Sadasivasway v.

State of Tamil Nadu, (1975) 1 SCC 152, wherein it has

been laid down that a person aggrieved by an order of

promoting a junior over his head should approach the

court at least within six months or at the most a year of

such promotion. 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

Special Appeal Defective No. - 647 of 2021

8

under Article 226 in the case of persons who do not

approach it expeditiously for the 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.

22.We are absolutely conscious that in the case at

hand the seniority has not been disturbed in the

promotional cadre and no promotions may be unsettled.

There may not be unsettlement of the settled position but,

a pregnant one, the respondents chose to sleep like Rip

Van Winkle and got up from their slumber at their own

leisure, for some reason which is fathomable to them

only. But such fathoming of reasons by oneself is not

countenanced in law. Anyone who sleeps over his right is

bound to suffer. As we perceive neither the tribunal nor

the High Court has appreciated these aspects in proper

perspective and proceeded on the base that a junior was

promoted and, therefore, the seniors cannot be denied the

promotion. Remaining oblivious to the factum of delay

and laches and granting relief is contrary to all settled

principles and even would not remotely attract the

concept of discretion. We may hasten to add that the

same may not be applicable in all circumstances where

certain categories of fundamental rights are infringed.

But, a stale claim of getting promotional benefits

definitely should not have been entertained by the

tribunal and accepted by the High Court. True it is,

notional promotional benefits have been granted but the

same is likely to affect the State exchequer regard being

had to the fixation of pay and the pension. These aspects

have not been taken into consideration. What is urged

Special Appeal Defective No. - 647 of 2021

9

before us by the learned counsel for the respondents is

that they should have been equally treated with Madhav

Singh Tadagi. But equality has to be claimed at the right

juncture and not after expiry of two decades. Not for

nothing, it has been said that everything may stop but not

the time, for all are in a way slaves of time. There may

not be any provision providing for limitation but a

grievance relating to promotion cannot be given a new

lease of life at any point of time."

7. The aforesaid view was followed by Hon'ble the Supreme

Court in Union of India and others vs Chaman Rana

2

and Union of

India and others vs. C. Girija and others

3

.

8. In Chennai Metropolitan Water Supply and Sewerage

Board and others v. T. T. Murali Babu

4

, Hon'ble the Supreme Court

opined as under:-

"13.First, we shall deal with the facet of delay. In

Maharashtra State Road Transport Corporation v.

Balwant Regular Motor Service, Amravati and others,

AIR 1969 SC 329, the Court referred to the principle that

has been stated by Sir Barnes Peacock in Lindsay

Petroleum Co. v. Prosper Armstrong Hurd, Abram

Farewall, and John Kemp, (1874) 5 PC 221, which is as

follows:-

"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

2 2018(5) SCC 798

3 2019 (3) SCALE 527

4 2014 (4) SCC 108

Special Appeal Defective No. - 647 of 2021

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which might fairly be regarded as equivalent to a

waiver of it, or where by his conduct and neglect

he has, though perhaps not waiving that remedy,

yet put the other party in a situation in which it

would not be reasonable to place him if the remedy

were afterwards to be asserted in either of these

cases, lapse of time and delay are most material.

But in every case, if an argument against relief,

which otherwise would be just, is founded upon

mere delay, that delay of course not amounting to a

bar by any statute of limitations, the validity of that

defence must be tried upon principles substantially

equitable. Two circumstances, always important in

such cases, are, the length of the delay and the

nature of the acts done during the interval, which

might affect either party and cause a balance of

justice or injustice in taking the one course or the

other, so far as relates to the remedy."

14.In State of Mahrashtra v. Digambar, (1995) 4 SCC

683, while dealing with exercise of power of the High

Court under Article 226 of the Constitution, the Court

observed that power of the High Court to be exercised

under Article 226 of the Constitution, if is discretionary,

its exercise must be judicious and reasonable, admits of

no controversy. It is for that reason, a person's entitlement

for relief from a High Court under Article 226 of the

Constitution, be it against the State or anybody else, even

if is founded on the allegation of infringement of his legal

right, has to necessarily depend upon unblameworthy

conduct of the person seeking relief, and the court refuses

to grant the discretionary relief to such person in exercise

Special Appeal Defective No. - 647 of 2021

11

of such power, when he approaches it with unclean hands

or blameworthy conduct.

15.In State of M. P. and others etc. etc. vs. Nandlal

Jaiswal and others etc. etc., AIR 1987 SC 251, the Court

observed that it is well settled that power of the High

Court to issue an appropriate writ underArticle 226 of the

Constitution is discretionary and the High Court in

exercise of its discretion does not ordinarily assist the

tardy and the indolent or the acquiescent and the

lethargic. It has been further stated therein that if there is

inordinate delay on the part of the petitioner in filing a

petition and such delay is not satisfactorily explained, the

High Court may decline to intervene and grant relief in

the exercise of its writ jurisdiction. Emphasis was laid on

the principle of delay and laches stating that resort to the

extraordinary remedy under the writ jurisdiction at a

belated stage is likely to cause confusion and public

inconvenience and bring in injustice.

16.Thus, the doctrine of delay and laches should not

be lightly brushed aside. A writ court is required to weigh

the explanation offered and the acceptability of the same.

The court should bear in mind that it is exercising an

extraordinary and equitable jurisdiction. As a

constitutional court it has a duty to protect the rights of

the citizens but simultaneously it is to keep itself alive to

the primary principle that when an aggrieved person,

without adequate reason, approaches the court at his own

leisure or pleasure, the court would be under legal

obligation to scrutinize whether the lis at a belated stage

should be entertained or not. Be it noted, delay comes in

the way of equity. In certain circumstances delay and

Special Appeal Defective No. - 647 of 2021

12

laches may not be fatal but in most circumstances

inordinate delay would only invite disaster for the litigant

who knocks at the doors of the court. Delay reflects

inactivity and inaction on the part of a litigant “a litigant

who has forgotten the basic norms, namely,

"procrastination is the greatest thief of time" and second,

law does not permit one to sleep and rise like a phoenix.

Delay does bring in hazard and causes injury to the lis. In

the case at hand, though there has been four years' delay

in approaching the court, yet the writ court chose not to

address the same. It is the duty of the court to scrutinize

whether such enormous delay is to be ignored without

any justification. That apart, in the present case, such

belated approach gains more significance as the

respondent employee being absolutely careless to his

duty and nurturing a lackadaisical attitude to the

responsibility had remained unauthorisedly absent on the

pretext of some kind of ill health. We repeat at the cost of

repetition that remaining innocuously oblivious to such

delay does not foster the cause of justice. On the contrary,

it brings in injustice, for it is likely to affect others. Such

delay may have impact on others' ripened rights and may

unnecessarily drag others into litigation which in

acceptable realm of probability, may have been treated to

have attained finality. A court is not expected to give

indulgence to such indolent persons- who compete with

`Kumbhakarna' or for that matter 'Rip Van Winkle'. In our

considered opinion, such delay does not deserve any

indulgence and on the said ground alone the writ court

should have thrown the petition overboard at the very

threshold."

Special Appeal Defective No. - 647 of 2021

13

9. In Bal Krishan vs. State of Punjab and others

5

,

wherein the petitioner, after rendering about 34 years of service,

sought refixation of his pay from the date he joined service by filing a

petition more than three years after his retirement, the court dismissed

the writ petition on account of delay and laches only.

10. The issue regarding decision of a claim on a direction by

the Court on the representation filed by a writ petitioner was also

considered in Union of India and others vs. M.K. Sarkar

6

, wherein

it was held that the issue of limitation or delay and laches is to be

considered with reference to original cause of action and not with

reference to an order passed in compliance to Court's direction. The

Court's direction to consider representation or a decision given in

compliance thereof, will not extend the limitation or erase the delay

and laches.

11. In Vijay Kumar Kaul and others vs. Union of India

and others

7

, Hon'ble the Supreme Court declined relief to the

petitioners who were fence sitters as they had approached the Court

after the issues raised by other employees were decided. Relief was

declined on account of delay and laches.

12. The issue was further examined in Prabhakar vs. Joint

Director Sericulture Department and another

8

. It was a case under

the Industrial Disputes Act. In the aforesaid case the matter in dispute

was regarding delay in raising the industrial dispute. The opinion

expressed by the Court was that right not exercised for a long time is

non-existent even if there is no limitation period prescribed. The

litigant was non-suited on the doctrine of delay and laches as well as

doctrine of acquiescence. Paragraph 38 of the judgment is extracted

below:-

52013(2) RSJ 18, (P&H)

62010(2) SCC 59

7 2012 (7) SCC 610

8 (2015) 15 SCC 1

Special Appeal Defective No. - 647 of 2021

14

"38.Likewise, if a party having a right stands by and

sees another acting in a manner inconsistent with that

right and makes no objection while the act is in progress

he cannot afterwards complain. This principle is based on

the doctrine of acquiescence implying that in such a case

party who did not make any objection acquiesced into the

alleged wrongful act of the other party and, therefore, has

no right to complain against that alleged wrong."

13. The Halsbury's Laws of England explains delay, latches

and acquiescence as under:

"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."

Special Appeal Defective No. - 647 of 2021

15

14. In State of Jammu & Kashmir vs. R. K. Zalpuri and

others

9

, Hon'ble the Supreme Court considered the issue regarding

delay and laches in raising the dispute before the Court. It was opined

that the issue sought to be raised by the petitioners therein was not

required to be addressed on merits on account of delay and laches.

The relevant paras thereof are extracted below:-

"27. The grievance agitated by the respondent did not

deserve to be addressed on merits, for doctrine of delay

and laches had already visited his claim like the chill of

death which does not spare anyone even the one who

fosters the idea and nurtures the attitude that he can sleep

to avoid death and eventually proclaim "Deo gratias -

thanks to God”.

28.Another aspect needs to be stated. A writ court

while deciding a writ petition is required to remain alive

to the nature of the claim and the unexplained delay on

the part of the writ petitioner. Stale claims are not to be

adjudicated unless non-interference would cause grave

injustice. The present case, need less to emphasise, did

not justify adjudication. It deserves to be thrown

overboard at the very threshold, for the writ petitioner

had accepted the order of dismissal for half a decade and

cultivated the feeling that he could freeze time and

forever remain in the realm of constant present."

15. The aforesaid view was followed by Hon'ble the Supreme

Court in Union of India and others v. Chaman Rana

10

.

16. Subsequently, a Constitution Benchy of Hon'ble the

Supreme Court in Senior Divisional Manager, Life Insurance

9 2015 (15) SCC 602

10(2018(5) SCC 798

Special Appeal Defective No. - 647 of 2021

16

Corporation v. Shree Lal Meena

11

, considering the principle of delay

and laches, opined as under:-

“36.We may also find that the appellant remained silent

for years together and that this Court, taking a particular

view subsequently, in Sheel Kumar Jain v. New India

Assurance Company Limited, (2011)12 SCC 197 would

not entitle stale claims to be raised on this behalf, like

that of the appellant. In fact the appellant slept over the

matter for almost a little over two years even after the

pronouncemtn of the judgment.

37.Thus, the endeavour of the appellant, to approach

this Copurt seeking the relief, as prayed for, is clearly a

misadventure, which is liable to be rejected, and the

appeal is dismissed.”

17. Recently, in Bharat Coking Coal Ltd. And othyers v.

Shyam Kishore Singh

12

, the issue regarding the delay and laches, was

considered by Hon'ble the Supreme Court and a petition filed

belatedly, seeking change in the date of birth in the service record,

was dismissed.

18. Reference can also be made to the Division Bench

judgments of the Jammu and Kashmir High Court in State of J&K

and others v. S. Bhupinder Singh

13

and in Farooq Ahmad v. State

of J&K and others

14

.

19. Keeping in view the authoritative enunciation of law, as

referred to above, the present Special Appeal challenging the

judgment and order passed by the learned Single Judge dated July 07,

11 (2019)4 SCC 479

12 Civil Appeal No.1009 of 2020, decided on 5.2.2020

13 LPASW No.192 of 2017, decided on 30.12.2017

14 LPA No.210 of 2019, decided on 21.8.2019

Special Appeal Defective No. - 647 of 2021

17

2021 whereby the writ petition seeking a direction to the respondents

to consider and decide the appeal dated December 30, 1995 filed by

her late husband, who was dismissed from service way back in the

year 1990, was dismissed on the ground of delay and laches, deserves

to be dismissed.

20. Ordered accordingly.

Allahabad

18.10.2021

Rakesh/Kuldeep

(Piyush Agrawal, J.) (Rajesh Bindal, C.J.)

Whether the order is speaking :Yes/No

Whether the order is reportable :Yes/No