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IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON’BLE SHRI JUSTICE SANJAY DWIVEDI

ON THE 7

th

OF FEBRUARY, 2025

WRIT PETITION No.24030 of 2021

SHRI JITENDRA NARAYAN PANDEY

Versus

STATE OF MADHYA PRADESH AND OTHERS

................................................................................................................................................

Appearance :

Shri Brian D’silva – Senior Advocate with Shri Abhishek Dilraj – Advocate for

the petitioner.

Shri K.V.S. Sunil Rao – Panel Lawyer for respondent No.1/State.

Shri Pankaj Dubey – Advocate for respondent Nos.2 and 3.

Shri Rahul Mishra – Advocate for respondent No.4.

Shri Amit Chaturvedi – Advocate for respondent No.5.

................................................................................................................................................

Reserved on : 23.01.2025

Pronounced on : 07.02.2025

ORDER

Pleadings are complete. The counsel for the parties agreed to

argue the matter finally, accordingly, it is finally heard.

2.By the instant petition filed under Article 226 of the Constitution

of India, the petitioner has claimed that his superannuation vide order

dated 16.10.2014 and the order dated 06.06.2015 be declared bad in law

and promotion granted to respondent Nos.4 and 5 be set aside.

It has also been claimed that the order rejecting the representation

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of the petitioner vide order dated 28.01.2021 be also set aside and it be

directed that the case of the petitioner be considered for promotion to

the post of Superintending Engineer without considering the adverse

ACRs for the years 2011 to 2013 and as such, he be promoted w.e.f.

16.10.2024, the date when respondent No.4 was promoted superseding

the petitioner or he be granted promotion w.e.f. 06.06.2015 when

respondent No.5, who was junior to him, was promoted after

superseding the petitioner and the petitioner be granted all consequential

benefits.

Although, this fact has been denied by the respondents and they

have contended that the petition suffers from delay and laches and as

such, petition can be dismissed because in a matter of promotion, delay

plays an important role as in number of cases, the Supreme Court is

continuously holding that in a case of promotion claimed belatedly, the

High Court should not entertain the petition if there is no sufficient

explanation given for challenging the same belatedly and according to

the respondents, the petition deserves to be dismissed on the ground of

delay and laches.

3. However, considering the submissions made by learned counsel

for the parties and on perusal of record, the core question emerges for

adjudication is “whether the petition suffers from delay and laches and if

not, then the petitioner’s claim for granting him promotion with

retrospective date when respondent Nos.4 and 5 were promoted, can be

considered or not?”

4.To resolve the controversy involved in this case, it is apt to

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mention the relevant facts of the case, which in nutshell are:-

(4.1)That the petitioner was appointed on the post of Sub Engineer

in the year 1984 in the department of respondent No.2 and after

considering his record, he was granted promotion to the post of

Project Engineer in the year 2005.

(4.2)In the year 2014, two posts of Superintending Engineer were

sanctioned and Shri J.P. Pastore (respondent No.4 herein) who

was posted as Sub Engineer in the year 1998, later promoted to

the post of Project Engineer and further promoted to the post of

Superintending Engineer in the year 2014.

(4.3)Likewise, Shri Kishan Widhani (respondent No.5 herein) has

also been promoted as Superintending Engineer in the year

2015 whereas he was appointed as Sub Engineer in the year

1988 and promoted to the post of Project Engineer in the year

2012.

(4.4)As per the petitioner, in the year 2014, a DPC was convened for

considering the eligible Project Engineers to be promoted to the

post of Superintending Engineer. The DPC met on 13.10.2014

for filling up two vacant posts of Superintending Engineer and

as per the criteria prescribed in the Rules, cases were to be

considered on the basis of merit-cum-seniority and as per the

criteria, DPC had to consider the ACRs of preceding five years

and 13 marks were fixed as benchmark for eligible candidates.

(4.5)The petitioner was very hopeful to be considered for the said

promotional post but he was not promoted despite the fact that

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he was never communicated any adverse remark and was

enjoying good reputation as per his outstanding performance.

(4.6)Although, after coming to know about the fact that he has been

superseded by his junior i.e. respondent No.4, he immediately

approached his senior officers so as to know why he was not

promoted and he came to know that for the ACRs of preceding

five years i.e. 2010 to 2014, he secured only 12 marks whereas

respondent No.4 secured 15 marks.

(4.7)The next DPC was convened in pursuance of order dated

27.05.2015 to fill up the post of Superintending Engineer from

eligible Project Engineers. The petitioner being the senior most,

was again considered in the said DPC but was not promoted

and respondent No.5 got promoted. The petitioner again

inquired about the said fact and he came to know that on the

basis of ACRs, he secured only 12 marks whereas respondent

No.5 secured 17 marks and therefore, was promoted vide order

dated 06.06.2015.

(4.8)As per the petitioner, he was never communicated any of his

adverse ACRs more particularly for the years 2010 to 2014

which were taken note of by the DPC and therefore, he in

pursuance of the promotion granted to respondent Nos.4 and 5

in the year 2014 and 2015 respectively, has made a

representation dated 23.07.2019 stating therein that since he

was never communicated his adverse ACRs, therefore, his

representation be considered and adverse communication be

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upgraded and review DPC be convened.

(4.9)A writ petition was also filed by the petitioner i.e. W.P.

No.10156 of 2020, which was disposed of vide order dated

27.08.2020 directing the petitioner to file a fresh representation

to the respondents and if that is done, the same will be decided

by the respondents assigning reason with a speaking order.

(4.10)The fresh representation was submitted by the petitioner on

01.10.2020, which was decided by the respondent/authority

vide order dated 28.01.2021 assigning reason therein as to why

adverse ACRs were not communicated and it was also assured

that in future, the petitioner will be considered with sympathy

for promotion to a higher post.

(4.11)The petitioner again requested the respondents vide letter dated

23.07.2021 asking copies of ACRs for the years 2009-2010 to

2019-2020 and when the same were supplied to him then only

he came to know that in the ACRs for the year 2010-2011, he

was assessed as “d” with a note “Very Good” by the Assessing

Officers and it was also approved by respondent No.2. Although

respondent No.3 had downgraded it from “d” (Very Good) to

“[k” (Good) without assigning any reason.

(4.12)The petitioner thereafter had filed a petition i.e. W.P. No.20704

of 2021 before this Court and after receiving the copy of ACRs

through RTI, he had withdrawn that petition with liberty to file

a fresh one in case grievance survives.

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(4.13)In the backdrop of aforesaid factual matrix, the petitioner is

before this Court assailing the orders passed by the

respondent/authority.

5.Shri Brian D’silva, learned senior counsel appearing for the

petitioner has submitted that as per the settled principle of law, the

adverse ACRs, if not communicated, cannot be taken note of at the time

of considering the case of promotion by the DPC. He has submitted that

in the present case, admittedly adverse ACRs were not communicated to

the petitioner and those were coming in way of his promotion and

therefore, the proceeding of DPC granting promotion to respondent

Nos.4 and 5 deserves to be set aside and review DPC be convened

ignoring the ACRs of the petitioner for the years 2010 to 2014 and

promotion of respondent Nos.4 and 5 be also set aside.

6.The main contesting respondents i.e. respondent Nos.2 and 3 have

filed their reply.

7.Countering the aforesaid arguments of the counsel for the

petitioner, Shri Pankaj Dubey, learned counsel appearing for respondent

Nos.2 and 3 has submitted that the petitioner suffers from delay and

laches, therefore, it is liable to be dismissed on this very ground.

8.As per the respondents, though the petitioner was considered by

the DPC but since he failed to qualify the required criteria, therefore, he

was not promoted and was superseded in the year 2014 and 2015 and

now in a petition of 2021, the petitioner’s claim cannot be considered

because it is hopelessly barred by time. The petition should have been

filed immediately after the order of promotion of respondent Nos.4 and

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5 and even the first representation according to them, has been filed in

the year 2019 and therefore, the explanation given in the column of

delay in the petition cannot be considered to be a sufficient cause. The

petition therefore, deserves to be dismissed.

9.Respondent Nos.4 and 5 have also filed their reply and submitted

that their promotion has been made by the respondents after due

consideration of their record and since they fulfilled the criteria,

therefore, got promoted. Not only this, but the petitioner was also

considered by the respondents but since he failed to achieve the cut-off

marks, therefore, was not promoted and as such, after such a long time,

their promotion cannot be set aside because the same was validly done

following the rules. Ergo, the petition according to them, deserves to be

dismissed.

10.Shri D’silva, during the course of arguments has placed reliance

upon an order passed by this Court in the first round i.e. W.P. No.10156

of 2020 which got disposed of vide order dated 27.08.2020 directing the

petitioner to make a fresh representation and respondents at the same

time, were also directed to decide the same by a speaking and reasoned

order and according to Shri D’silva, since the High Court has considered

the petition and disposed of the same with a direction to file a fresh

representation, therefore, at this stage, the delay cannot be taken note of

and his petition cannot be dismissed on the ground of delay and laches.

He has also contended that the petitioner’s representation of 2019 was

pending before the authority, not decided and when the Court has

directed to file it afresh, a fresh representation was filed which was

decided by the impugned order dated 28.01.2021 (Annexure-P/11), not

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rejecting the representation of the petitioner on the ground of delay,

therefore, this petition challenging the said order of the authority not

considering the representation in proper manner, the petition on the

ground of delay cannot be dismissed.

11.However, I am not convinced with the submissions made by

learned counsel for the petitioner. Undisputably, the cause of action to

challenge the promotion of respondent Nos.4 and 5 arose when they

were junior to the petitioner and promoted after superseding the

petitioner in the year 2014 and 2015 respectively. The petitioner first

time has made a representation in the year 2019 and since that

representation was not decided by the authority, therefore, he filed a

petition i.e. W.P. No.10156 of 2020, which was disposed of directing the

petitioner to make a fresh representation to the respondents but, merely

because the Court has directed the petitioner to file a fresh

representation directing the authority to decide the same by a reasoned

and speaking order, it does not mean that the delay in raising the cause

by the petitioner can now be considered. The order passed by the High

Court disposing of the said petition was in the following manner:-

“Under these circumstances, petitioner is directed to

submit a fresh representation along with all the relevant

documents before respondent No.1 within two weeks

from the date of receipt of certified copy of this order. In

turn, the said respondent shall decide the same in

accordance with law by passing a reasoned and speaking

order within a further period of three months’ time.”

12.The petition was not decided on merit as there was no

consideration on merit of the claim and on the first hearing, without the

reply of respondent Nos.2 and 3 and even without granting any

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opportunity to them, the said petition was disposed of, therefore, the

stand taken by the petitioner that when High Court on earlier occasion

entertained the petition and directed the petitioner to make a fresh

representation, then at this stage, the delay cannot be taken note of, is

not sustainable.

13.The second writ petition i.e. W.P. No.20704 of 2021 was also

withdrawn by the petitioner and that was also at the first hearing not

giving any notice to the respondents and this withdrawal was simplicitor

with liberty to file afresh if cause of action still survives.

14.In my opinion, it can be assessed that the petitioner was very

tactfully filing the petitions before this Court knowing fully well that the

same could have been dismissed on the ground of delay and laches,

therefore, on the first occasion, he got the petition disposed of and on

the second occasion, withdrew the same and again filed a fresh petition,

the present one. As such, it is clear that the question of delay in raising

cause has not been considered by the Court in earlier rounds of litigation

and therefore, if that objection is being raised by the respondents, it is

the duty of the Court to consider it whether the petition suffers from

delay and laches or not.

15.Although Shri D’silva has relied upon the judgments of the

Supreme Court reported in (2008) 8 SCC 725 (Dev Dutt Vs. Union of

India & Others), (2009) 16 SCC 146 (Abhijit Ghosh Dastidar Vs.

Union of India & Others) and also upon an order passed by this Court

in W.P. No.30909 of 2023 (Mrs. Veena Jain Vs. The State of Madhya

Pradesh & Others), but in all those cases, the question of delay has not

been considered and the legal position is that the Court has considered

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the cases in which the DPC considered the ACRs which were not

communicated but found adverse.

16.There is no dispute with regard to legal aspect as has been relied

upon by the counsel for the petitioner and the judgments cited by him

dealing with the said legal aspect, but here in this case, the question is as

to whether the petition filed by the petitioner raising his grievance

suffers from delay and laches and explanation given by the petitioner is

sufficient or not.

17.The counsel for the respondents have placed reliance upon a

decision reported in (1975) 1 SCC 152 (P.S. Sadasivaswamy Vs. State

of Tamil Nadu) in which the Supreme Court has dismissed the writ

petition filed under Article 226 of the Constitution of India on the

ground of delay and laches holding as under:-

“The appellant failed to come to the Court on three

opportunities when he could have. A person aggrieved by

an order promoting a junior over his head should

approach the Court at least within 6 months or at the

most a year of such promotion and the High Court can

refuse to exercise its extraordinary powers under Article

226 in the case of persons who do not approach

expeditiously for relief and put forward stale claim and

try to unsettle settled matters.”

18.They have also placed reliance upon an order dated 24.08.2023

passed by this Court in Writ Petition No.23739 of 2022 (Anil Kumar

Sharma Vs. The State of Madhya Pradesh and others), in which, the

High Court has observed as under:-

“4. By this petition the petitioner has claimed promotion to

the post of Assistant Sub Inspector w.e.f. 1.10.2015

whereas this petition has been filed on 17.10.2022, i.e.

after seven years. It is submitted by counsel for the

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petitioner that since the petitioner is making successive

representations, therefore, there is no delay in filing this

petition.

10. Thus, it is clear that successive representations do not

give rise to a new cause of action. Furthermore, by this

petition the petitioner has challenged the order dated

1.10.2015 by which certain persons including Rewaram

Gaikwad were granted promotion. Much water has flown

under the bridge. In clause 4 of the writ petition, the

petitioner has merely stated that since cause of action

leading to this petition is constant in nature, therefore,

there is no delay. However, this Court is of the

considered opinion that delayed challenge of

supersession is a fatal cause. In the meanwhile, the

petitioner has allowed lot of things to take place.

11. The Supreme Court in the case of Karnataka Power

Corpon. Ltd. Vs. K. Thangappan reported in (2006) 4

SCC 322 has held as under :

6. Delay or laches is one of the factors which is to be

borne in mind by the High Court when they exercise

their discretionary powers under Article 226 of the

Constitution. In an appropriate case the High Court

may refuse to invoke its extraordinary powers if there

is such negligence or omission on the part of the

applicant to assert his right as taken in conjunction

with the lapse of time and other circumstances, causes

prejudice to the opposite party. Even where

fundamental right is involved the matter is still within

the discretion of the Court as pointed out in Durga

Prashad v. Chief Controller of Imports and Exports.

Of course, the discretion has to be exercised judicially

and reasonably.

7. What was stated in this regard by Sir Barnes

Peacock in Lindsay Petroleum Co. v. Prosper

Armstrong Hurd (PC at p. 239) was approved by this

Court in Moon Mills Ltd. v. M.R. Meher and

Maharashtra SRTC v. Shri Balwant Regular Motor

Service. Sir Barnes had stated:

“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

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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 limitation,

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 it

relates to the remedy.”

8. It would be appropriate to note certain decisions of

this Court in which this aspect has been dealt with in

relation to Article 32 of the Constitution. It is apparent

that what has been stated as regards that article would

apply, a fortiori, to Article 226. It was observed in

Rabindranath Bose v. Union of India that no relief can

be given to the petitioner who without any reasonable

explanation approaches this Court under Article 32

after inordinate delay. It was stated that though Article

32 is itself a guaranteed right, it does not follow from

this that it was the intention of the Constitution-

makers that this Court should disregard all principles

and grant relief in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal Jaiswal that

the High Court in exercise of its discretion does not

ordinarily assist the tardy and the indolent or the

acquiescent and the lethargic. If there is inordinate

delay on the part of the petitioner and such delay is

not satisfactorily explained, the High Court may

decline to intervene and grant relief in exercise of its

writ jurisdiction. It was stated that this rule is

premised on a number of factors. 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

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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.”

19.Reliance has also been placed upon an order dated 17.10.2022

passed by the Gwalior Bench of this Court in Writ Petition No.22660

of 2022 (Raspati Ojha and another Vs. The State of Madhya

Pradesh and others), in which, the High Court has observed as under:-

“……...Thus, it is held that in case of promotion, the

delay and laches assumes importance. If a person was

sitting over his/her right, thereby allowing the

situation to change drastically, then he has to suffer for

his own lethargy. A person may feel aggrieved that the

similarly situated person has been granted promotion,

but then, the person who was sleeping over his right,

is responsible for burning his heart. Delay defeats

equity. Further more, merely because a vigilant

employee was agitating his cause and got the relief,

then the judgment passed in the case of vigilant

employee would not amount to giving rise to any

cause of action in favor of those persons who were

sleeping over their rights. Furthermore, repeated

representations do not extend the period of limitation,

and even if, the Court has directed for deciding the

representation, still an old and stale case cannot be

reopened, because a decision on the delayed

representation would not give rise to any fresh cause

of action.”

20.This Court also vide order dated 17.10.2024 passed in Writ

Petition No.8045 of 2016 (C.B.M. Tiwari Vs. The Chairman, Coal

India Ltd. And others) dealing with the importance of limitation in a

case of promotion, has observed as under:-

“10. As already mentioned hereinabove, none of

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the juniors promoted by the respondents ignoring the

petitioner has been impleaded as a party and even after

giving opportunities to the learned counsel for the

petitioner being in representative capacity to implead

any of the junior who superseded the petitioner, he

refused to do so. As such, now this Court has to see

whether in a case of supersession when respondents are

denying that no junior of the petitioner has been

promoted and no relief can be granted without

impleading any of the juniors superseded the petitioner,

relief can be granted or not and petition can be

maintained or not, because it suffers from non-joinder

of the necessary party. In this regard, learned counsel

for the respondents has placed reliance upon a decision

reported in Vijay Kumar Kaul (supra) in which the

Supreme Court has considered the claim of promotion

on the ground that juniors have been promoted. The

Supreme Court has also taken note of the aspect of

delay. The Supreme Court has also observed that in

absence of any junior promoted ignoring the claim of

the petitioner, the petition cannot be maintained and

that suffers from non-joinder of the parties. The

Supreme Court has observed as under:

“36. Another aspect needs to be highlighted.

Neither before the Tribunal nor before the High

Court, Parveen Kumar and others were arrayed as

parties. There is no dispute over the factum that

they are senior to the appellants and have been

conferred the benefit of promotion to the higher

posts. In their absence, if any direction is issued

for fixation of seniority, that is likely to

jeopardise their interest. When they have not been

impleaded as parties such a relief is difficult to

grant.

37. In this context we may refer with profit to the

decision in Indu Shekhar Singh v. State of U.P.

[(2006) 8 SCC 129 : 2006 SCC (L&S) 1916 : AIR

2006 SC 2432] wherein it has been held thus :

(SCC p. 151, para 56)

“56. There is another aspect of the matter.

The appellants herein were not joined as

parties in the writ petition filed by the

respondents. In their absence, the High

Court could not have determined the

question of inter se seniority.”

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38. In Public Service Commission v. Mamta Bisht

[(2010) 12 SCC 204 : (2011) 1 SCC (L&S) 208 :

AIR 2010 SC 2613] this Court while dealing with

the concept of necessary parties and the effect of

non-impleadment of such a party in the matter

when the selection process is assailed observed

thus : (SCC pp. 207-08, paras 9-10)

“9. … in Udit Narain Singh Malpaharia v.

Board of Revenue [AIR 1963 SC 786] ,

wherein the Court has explained the

distinction between necessary party, proper

party and pro forma party and further held that

if a person who is likely to suffer from the

order of the court and has not been impleaded

as a party has a right to ignore the said order

as it has been passed in violation of the

principles of natural justice. More so, proviso

to Order 1 Rule 9 of the Code of Civil

Procedure, 1908 (hereinafter called ‘CPC’)

provides that non-joinder of necessary party

be fatal. Undoubtedly, provisions of CPC are

not applicable in writ jurisdiction by virtue of

the provision of Section 141 CPC but the

principles enshrined therein are applicable.

(Vide Gulabchand Chhotalal Parikh v. State of

Gujarat [AIR 1965 SC 1153] , Babubhai

Muljibhai Patel v. Nandlal Khodidas Barot

[(1974) 2 SCC 706 : AIR 1974 SC 2105] and

Sarguja Transport Service v. STAT [(1987) 1

SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC

88] .)

10. In Prabodh Verma v. State of U.P. [(1984)

4 SCC 251 : 1984 SCC (L&S) 704 : AIR 1985

SC 167] and Tridip Kumar Dingal v. State of

W.B. [(2009) 1 SCC 768 : (2009) 2 SCC

(L&S) 119 : AIR 2008 SC Supp 824] , it has

been held that if a person challenges the

selection process, successful candidates or at

least some of them are necessary parties.”

39. From the aforesaid enunciation of law there

cannot be any trace of doubt that an affected party

has to be impleaded so that the doctrine of audi

alteram partem is not put into any hazard.”

11. The Supreme Court in the above case also

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considered the aspect of claiming relief of seniority

and promotion at a belated stage and observed that

the claim of promotion can be raised at an earliest

opportunity or within a reasonable time. The belated

approach is impermissible because in the meantime

interest of third parties gets ripened and any

interference after enormous delay creates anarchy.

The Supreme Court has also observed that it becomes

an obligation to take into consideration the balance of

justice or injustice while 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. Not only this but the Supreme

Court has further observed that making continuous

representations and consuming time to see the result

of those representations is unwarranted and petition

can be dismissed on the ground of delay and laches.

The Supreme Court observed with regard to delay as

under:-

“22. As far as Appellant 4 is concerned, we

really see no justifiable reason on his part to join

the other appellants when he had acceded to the

first judgment passed in his favour to a limited

extent by the Tribunal. This was an ambitious

effort but it is to be borne in mind that all

ambitions are neither praiseworthy nor have the

sanction of law. Be that as it may, they

approached the Tribunal sometime only in 2004.

The only justification given for the delay was

that they had been making representations and

when the said benefit was declined by

communication dated 31-7-2004, they moved the

Tribunal. The learned Senior Counsel for the

appellants fairly stated that as the doctrine of

parity gets attracted, they may only be conferred

the benefit of seniority so that their promotions

are not affected.

23. It is necessary to keep in mind that a claim

for seniority is to be put forth within a

reasonable period of time. In this context, we

may refer to the decision of this Court in P.S.

Sadasivaswamy v. State of T.N. [(1975) 1 SCC

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152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271]

wherein a two-Judge Bench has held thus : (SCC

p. 154, para 2)

“2. … It is not that there is any period of

limitation for the courts to exercise their powers

under Article 226 nor is it that there can never be

a case where the courts cannot interfere in a

matter after the passage of a certain length of

time. But it would be a sound and wise exercise

of discretion for the courts to refuse to exercise

their extraordinary powers under Article 226 in

the case of persons who do not approach it

expeditiously for relief and who stand by and

allow things to happen and then approach the

court to put forward stale claims and try to

unsettle settled matters.”

24. In Karnataka Power Corpn. Ltd. v. K.

Thangappan [(2006) 4 SCC 322 : 2006 SCC (L&S)

791 : AIR 2006 SC 1581] this Court had held thus

that : (SCC p. 325, para 6)

“6. Delay or laches is one of the factors which

is to be borne in mind by the High Court when

they exercise their discretionary powers under

Article 226 of the Constitution. In an

appropriate case the High Court may refuse to

invoke its extraordinary powers if there is such

negligence or omission on the part of the

applicant to assert his right as taken in

conjunction with the lapse of time and other

circumstances, causes prejudice to the opposite

party. Even where fundamental right is involved

the matter is still within the discretion of the

court as pointed out in Durga Prashad v.

Controller of Imports and Exports [(1969) 1

SCC 185 : AIR 1970 SC 769] . Of course, the

discretion has to be exercised judicially and

reasonably.”

25. In City and Industrial Development Corpn. v.

Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168 :

AIR 2009 SC 571] this Court has opined that : (SCC

p. 174, para 26)

“26. … One of the grounds for refusing relief is

that the person approaching the High Court is

guilty of unexplained delay and the laches.

Inordinate delay in moving the court for a writ

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is an adequate ground for refusing a writ. The

principle is that the courts exercising public law

jurisdiction do not encourage agitation of stale

claims and exhuming matters where the rights

of third parties may have accrued in the

interregnum.”

26. From the aforesaid pronouncement of law, it is

manifest that a litigant who invokes the jurisdiction

of a court for claiming seniority, it is obligatory on

his part to come to the court at the earliest or at least

within a reasonable span of time. The belated

approach is impermissible as in the meantime interest

of third parties gets ripened and further interference

after enormous delay is likely to usher in a state of

anarchy.

27. The acts done during the interregnum are to be

kept in mind and should not be lightly brushed aside.

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.”

12.The Supreme Court in case of A.J. Fernandis

(supra) has considered the aspect of delay in a matter

of promotion and observed as under:-

“14. Even otherwise, it is to be noted that the

appellant got promoted to the post of Ticket

Collector on 28-5-1983. He was thereafter

promoted as a Senior Ticket Collector on 25-9-

1986. The appellant was then promoted as a

Train Ticket Examiner on 25-5-1987. The 3rd

respondent chose to challenge the promotion of

the appellant as a Ticket Collector only on 11-

12-1987, i.e., after a period of 4 years. On the

ground of delay and laches also the application

of the 3rd respondent should have been

dismissed.”

13.In case of Balram Prasad Shukla, the High

Court has also considered the claim of promotion on

the ground of delay and laches and observed as

under:-

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“7. It be seen that the petitioner was

promoted on the post of Accountant on ad-

hoc basis on 28-2-1980 but the promotion

was subject to the approval of the DPC as it

is clear on bare perusal of Annexure-I dated

28-2-1980. Thus, the confirmation of the

petitioner to the post of Accountant would be

only after the approval of the DPC. The DPC

was convened in the year 1981 and the

petitioner was not found fit as a result of

which vide order dated 7-7-1981 the

department passed impugned order

Annexure-H reverting the petitioner to his

original post of first grade clerk. It be seen

that the promotion which took place on 7-7-

1981 was never challenged by the petitioner

for near about nine years and by this petition

which was filed on 12-2-1990 the petitioner

is seeking promotion w.e.f. 7-7-1981. In the

case of P.S. Sadasivaswamy v. State of Tamil

Nadu, (1975) 1 SCC 152 : AIR 1974 SC

2271 the Apex Court upheld the decision of

Madras High Court dismissing the writ

petition of the petitioner on the ground of

laches in regard to promotion which was

sought after 14 years. In that case the

Supreme Court held that if a person is

aggrieved by an order of promotion,

promoting a junior over his head he should

approach the Court atleast within six months

or at the most a year of such promotion. The

same view has been reiterated by the Apex

Court in a later decision in the case of A.J.

Fernandis v. Divisional Manager, South

Central Railway, (2001) 1 SCC 240 in which

the Apex Court held that the promotion of

another employee cannot be changed after a

period of four long years. Since the petitioner

is challenging the order of promotion after

near about nine years, the view of this Court

is that on the basis of the decision of P.S.

Sadasivaswamy and A.J. Fernandis (supra),

the petitioner is not entitled for the relief.”

21.In view of the above, it is clear that the petition suffers from delay

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and laches. Merely because a representation was made by the petitioner

in the year 2019, though not decided by the authority on the ground of

delay, does not mean that the Court at the time of entertaining the

petition, cannot consider the question of delay.

22.Dealing with the similar situation, the Supreme Court in a case

reported in (2008) 10 SCC 115 (C. Jacob Vs. Director of Geology and

mining and another) has observed as under:-

“9. The courts/tribunals proceed on the

assumption, that every citizen deserves a reply to his

representation. Secondly, they assume that a mere

direction to consider and dispose of the

representation does not involve any “decision” on

rights and obligations of parties. Little do they

realise the consequences of such a direction to

“consider”. If the representation is considered and

accepted, the ex-employee gets a relief, which he

would not have got on account of the long delay, all

by reason of the direction to “consider”. If the

representation is considered and rejected, the ex-

employee files an application/writ petition, not with

reference to the original cause of action of 1982, but

by treating the rejection of the representation given

in 2000, as the cause of action. A prayer is made for

quashing the rejection of representation and for

grant of the relief claimed in the representation. The

tribunals/High Courts routinely entertain such

applications/petitions ignoring the huge delay

preceding the representation, and proceed to

examine the claim on merits and grant relief. In this

manner, the bar of limitation or the laches gets

obliterated or ignored.

10. 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

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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.

11. When a direction is issued by a court/tribunal

to consider or deal with the representation, usually

the directee (person directed) examines the matter

on merits, being under the impression that failure to

do so may amount to disobedience. When an order is

passed considering and rejecting the claim or

representation, in compliance with direction of the

court or tribunal, such an order does not revive the

stale claim, nor amount to some kind of

“acknowledgement of a jural relationship” to give

rise to a fresh cause of action.

12. When a government servant abandons service

to take up alternative employment or to attend to

personal affairs, and does not bother to send any

letter seeking leave or letter of resignation or letter

of voluntary retirement, and the records do not show

that he is treated as being in service, he cannot after

two decades, represent that he should be taken back

to duty. Nor can such employee be treated as having

continued in service, thereby deeming the entire

period as qualifying service for the purpose of

pension. That will be a travesty of justice.”

23.Similarly, the High Court vide order dated 06.03.2024 passed in

Writ Petition No.7106 of 2020 (Sanjay Dave Vs. Union of India and

others) has considered the fact whether filing repeated representations

can give a fresh cause of action and delay can be ignored or not and

observed as under:-

“4. Before entering into the merits of the case, this

Court would like to deal with the preliminary

objections with regard to delay and latches. The crux

of the matter is that the service of the petitioner was

terminated in November, 2002 and the petitioner has

approached this Court after 18 long years. It is well

established principle of law that delay defeats

equity.”

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5. The Supreme Court in the case of Karnataka

Power Corpon. Ltd. Vs. K. Thangappan reported

in (2006) 4 SCC 322 has held as under :

6. Delay or laches is one of the factors which

is to be borne in mind by the High Court when

they exercise their discretionary powers under

Article 226 of the Constitution. In an

appropriate case the High Court may refuse to

invoke its extraordinary powers if there is

such negligence or omission on the part of the

applicant to assert his right as taken in

conjunction with the lapse of time and other

circumstances, causes prejudice to the

opposite party. Even where fundamental right

is involved the matter is still within the

discretion of the Court as pointed out in

Durga Prashad v. Chief Controller of Imports

and Exports. Of course, the discretion has to

be exercised judicially and reasonably.

7. What was stated in this regard by Sir

Barnes Peacock in Lindsay Petroleum Co. v.

Prosper Armstrong Hurd (PC at p. 239) was

approved by this Court in Moon Mills Ltd. v.

M.R. Meher and Maharashtra SRTC v. Shri

Balwant Regular Motor Service. Sir Barnes

had stated:

“Now, the doctrine of laches in courts of

equity is not an arbitrary or a technical

doctrine. Where it would be practically unjust

to give a remedy either because the party has,

by his conduct done that which might fairly be

regarded as equivalent to a waiver of it, or

where by his conduct and neglect he has

though perhaps not waiving that remedy, yet

put the other party in a situation in which it

would not be reasonable to place him if the

remedy were afterwards to be asserted, in

either of these cases, lapse of time and delay

are most material. 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 limitation, the validity of that

defence must be tried upon principles

substantially equitable. Two circumstances

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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 it relates to the remedy.”

8. It would be appropriate to note certain

decisions of this Court in which this aspect

has been dealt with in relation to Article 32 of

the Constitution. It is apparent that what has

been stated as regards that article would apply,

a fortiori, to Article 226. It was observed in

Rabindranath Bose v. Union of India that no

relief can be given to the petitioner who

without any reasonable explanation

approaches this Court under Article 32 after

inordinate delay. It was stated that though

Article 32 is itself a guaranteed right, it does

not follow from this that it was the intention

of the Constitution-makers that this Court

should disregard all principles and grant relief

in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal

Jaiswal that the High Court in exercise of its

discretion does not ordinarily assist the tardy

and the indolent or the acquiescent and the

lethargic. If there is inordinate delay on the

part of the petitioner and such delay is not

satisfactorily explained, the High Court may

decline to intervene and grant relief in

exercise of its writ jurisdiction. It was stated

that this rule is premised on a number of

factors. 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

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whether or not to exercise such jurisdiction.

The Supreme Court in the case of M.P. Ram

Mohan Raja Vs. State of T.N. Reported in (2007) 9

SCC 78 has held as under :

11. So far as the question of delay is

concerned, no hard-andfast rule can be laid

down and it will depend on the facts of each

case. In the present case, the facts stare at the

face of it that on 8-10-1996 an order was

passed by the Collector in pursuance of the

order passed by the High Court, rejecting the

application of the writ petitioner for

consideration of the grant of mining lease.

The writ petitioner sat tight over the matter

and did not challenge the same up to 2003.

This on the face of it appears to be very

serious. A person who can sit tight for such a

long time for no justifiable reason, cannot be

given any benefit.

The Supreme Court in the case of Shiv Dass Vs.

Union of India reported in (2007) 9 SCC 274 has

held as under :

6. Normally, in the case of belated approach

writ petition has to be dismissed. Delay or

laches is one of the factors to be borne in

mind by the High Courts when they exercise

their discretionary powers under Article 226

of the Constitution of India. In an appropriate

case the High Court may refuse to invoke its

extraordinary powers if there is such

negligence or omission on the part of the

applicant to assert his right as taken in

conjunction with the lapse of time and other

circumstances, causes prejudice to the

opposite party. Even where fundamental right

is involved the matter is still within the

discretion of the Court as pointed out in

Durga Prashad v. Chief Controller of Imports

and Exports. Of course, the discretion has to

be exercised judicially and reasonably.

7. What was stated in this regard by Sir

Barnes Peacock in Lindsay Petroleum Co. v.

Prosper Armstrong Hurd, PC at p. 239 was

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WP-24030-2021

approved by this Court in Moon Mills Ltd. v.

M.R. Meher and Maharashtra SRTC v.

Balwant Regular Motor Service. Sir Barnes

had stated:

“Now the doctrine of laches in courts of

equity is not an arbitrary or technical doctrine.

Where it would be practically unjust to give a

remedy either because the party has, by his

conduct done that which might fairly be

regarded as equivalent to a waiver of it, or

where by his conduct and neglect he has

though perhaps not waiving that remedy, yet

put the other party in a situation in which it

would not be reasonable to place him if the

remedy were afterwards to be asserted, in

either of these cases, lapse of time and delay

are most material. But in every case, if an

argument against relief, which otherwise

would be just, if founded upon mere delay,

that delay of course not amounting to a bar by

any statute of limitation, 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.”

8. It was stated in State of M.P. v. Nandlal

Jaiswal that the High Court in exercise of its

discretion does not ordinarily assist the tardy

and the indolent or the acquiescent and the

lethargic. If there is inordinate delay on the

part of the petitioner and such delay is not

satisfactorily explained, the High Court may

decline to intervene and grant relief in

exercise of its writ jurisdiction. It was stated

that this rule is premised on a number of

factors. 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

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WP-24030-2021

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.

The Supreme Court in the case of Nadia Distt.

Primary School Council Vs. Sristidhar Biswar

reported in (2007) 12 SCC 779 has held as under :

11. In the present case, the panel was prepared

in 1980 and the petitioners approached the

court in 1989 after the decision in Dibakar

Pal. Such persons should not be given any

benefit by the court when they allowed more

than nine years to elapse. Delay is very

significant in matters of granting relief and

courts cannot come to the rescue of the

persons who are not vigilant of their rights.

Therefore, the view taken by the High Court

condoning the delay of nine years cannot be

countenanced.

The Supreme Court in the case of U.P. Jal Nigam

Vs. Jaswant Singh reported in (2006) 11 SCC 464

has held as under :

12. The statement of law has also been

summarised in Halsbury’s Laws of England,

para 911, p. 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 positi on 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

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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.”

The Supreme Court in the case of Jagdish Lal Vs.

State of Haryana reported in (1997) 6 SCC 538 has

held as under :

18. That apart, as this Court has repeatedly held,

the delay disentitles the party to the

discretionary relief under Article 226 or Article

32 of the Constitution.

The Supreme Court in the case of NDMC Vs. Pan

Singh reported in (2007) 9 SCC 278 has held as

under :

16. There is another aspect of the matter which

cannot be lost sight of. The 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, U.P. Jal

Nigam v. Jaswant Singh and Karnataka

Power Corpn. Ltd. v. K. Thangappan.)

17. Although, there is no period of limitation

provided for filing a writ petition under Article

226 of the Constitution of India, ordinarily, writ

petition should be filed within a reasonable

time. (See Lipton India Ltd. v. Union of India

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WP-24030-2021

and M.R. Gupta v. Union of India.)

18. In Shiv Dass v. Union of India this Court

held: (SCC p.277, paras 9-10)

“9. It has been pointed out by this Court in a

number of cases that representations would not

be adequate explanation to take care of delay.

This was first stated in K.V. Rajalakshmiah Setty

v. State of Mysore. There is a limit to the time

which can be considered reasonable for making

overnment had turned down one representation

the making of another representation on similar

lines will not explain the delay. In State of

Orissa v. Pyarimohan Samantaray making of

repeated representations was not regarded as

satisfactory explanation of the delay. In that

case the petition had been dismissed for delay

alone. (See also State of Orissa v. Arun Kumar

Patnaik.).

10. In the case of pension the cause of action

actually continues from month to month. That,

however, cannot be a ground to overlook delay

in filing the petition. It would depend upon the

fact of each case. If petition is filed beyond a

reasonable period say three years normally the

Court would reject the same or restrict the relief

which could be granted to a reasonable period

of about three years. The High Court did not

examine whether on merit the appellant had a

case. If on merits it would have found that there

was no scope for interference, it would have

dismissed the writ petition on that score alone.”

19. We, therefore, are of the opinion that it was

not a fit case where the High Court should have

exercised its discretionary jurisdiction in favour

of the respondents herein.

The Supreme Court in the case of State of Orissa v.

Pyarimohan Amantaray reported in (1977) 3 SCC

396 has held as under :

6. It would thus appear that there is justification

for the argument of the Solicitor-General that

even though a cause of action arose to the

petitioner as far back as 1962, on the rejection

of his representation on November 9, 1962, he

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allowed some eleven years to go by before

filing the writ petition. There is no satisfactory

explanation of the inordinate delay for, as has

been held by this Court in Rabindra Nath Bose

v. Union of India the making of repeated

representations, after the rejection of one

representation, could not be held to be a

satisfactory explanation of the delay. The fact

therefore remains that the petitioner allowed

some years to go by before making a petition

for the redress of his grievances. In the

meantime a number of other appointments were

also made to the Indian Administrative Service

by promotion from the State Civil Service,

some of the officers received promotions to

higher posts in that service and may even have

retired. Those who continued to serve could

justifiably think that as there was no challenge

to their appointments within the period

prescribed for a suit, they could look forward to

further promotion and higher terminal benefits

on retirement. The High Court therefore erred in

rejecting the argument that the writ petition

should be dismissed because of the inordinate

and unexplained delay even though it was

“strenuously” urged for its consideration on

behalf of the Government of India.

The Supreme Court in the case of State of Orissa v.

Arun Kumar Patnaik reported in (1976) 3 SCC 579

has held as under :

14. It is unnecessary to deal at length with the

State’s contention that the writ petitions were

filed in the High Court after a long delay and

that the writ petitioners are guilty of laches. We

have no doubt that Patnaik and Mishra brought

to the court a grievance too stale to merit redress.

Krishna Moorthy’s appointment was gazetted on

March 14, 1962 and it is incredible that his

service-horoscope was not known to his possible

competitors. On November 15, 1968 they were

all confirmed as Assistant Engineers by a

common gazette notification and that notification

showed Krishna Moorthy’s confirmation as of

February 27, 1961 and that of the other two as of

May 2, 1962. And yet till May 29, 1973 when

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the writ petitions were filed, the petitioners did

nothing except to file a representation to the

Government on June 19, 1970 and a memorial to

the Governor on April 16, 1973. The High Court

made light of this long and inexplicable delay

with a casual remark that the contention was

“without any force”. It overlooked that in June,

1974 it was setting aside an appointment dated

March, 1962 of a person who had in the

meanwhile risen to the rank of a Superintending

Engineer. Those 12 long years were as if writ in

water. We cannot but express our grave concern

that an extraordinary jurisdiction should have

been exercised in such an abject disregard of

consequences and in favour of persons who were

unmindful of their so-called rights for many long

years.

The Supreme Court in the case of BSNL v.

Ghanshyam Dass reported in (2011) 4 SCC 374 has

held as under :

26. On the other hand, where only the affected

parties approach the court and relief is given to

those parties, the fence-sitters who did not

approach the court cannot claim that such relief

should have been extended to them thereby

upsetting or interfering with the rights which had

accrued to others.

27. In Jagdish Lal v. State of Haryana, the

appellants who were general candidates belatedly

challenged the promotion of Scheduled Caste and

Scheduled Tribe candidates on the basis of the

decisions in Ajit Singh Januja v. State of Punjab,

Union of India v. Virpal Singh Chauhan and R.K.

Sabharwal v. State of Punjab and this Court

refused to grant the relief saying: (Jagdish Lal

case, SCC pp. 562-63, para 18) “18. … this Court

has repeatedly held, the delay disentitles the party

to the discretionary relief under Article 226 or

Article 32 of the Constitution. It is not necessary

to reiterate all the catena of precedents in this

behalf. Suffice it to state that the appellants kept

sleeping over their rights for long and elected to

wake up when they had the impetus from Virpal

Chauhan and Ajit Singh ratios. But Virpal

Chauhan and Sabharwal cases, kept at rest the

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promotion already made by that date, and

declared them as valid; they were limited to the

question of future promotions given by applying

the rule of reservation to all the persons prior to

the date of judgment in Sabharwal case which

required to be examined in the light of the law

laid in Sabharwal case. Thus earlier promotions

cannot be reopened. Only those cases arising after

that date would be examined in the light of the

law laid down in Sabharwal case and Virpal

Chauhan case and equally Ajit Singh case. If the

candidate has already been further promoted to

the higher echelons of service, his seniority is not

open to be reviewed. In A.B.S. Karamchari Sangh

case a Bench of two Judges to which two of us,

K. Ramaswamy and G.B. Pattanaik, JJ. were

members, had reiterated the above view and it

was also held that all the prior promotions are not

open to judicial review. In Chander Pal v. State of

Haryana a Bench of two Judges consisting of

S.C. Agrawal and G.T. Nanavati, JJ. considered

the effect of Virpal Chauhan, Ajit Singh,

Sabharwal and A.B.S. Karamchari Sangh cases

and held that the seniority of those respondents

who had already retired or had been promoted to

higher posts could not be disturbed. The seniority

of the petitioner therein and the respondents who

were holding the post in the same level or in the

same cadre would be adjusted keeping in view the

ratio in Virpal Chauhan and Ajit Singh; but

promotion, if any, had been given to any of them

during the pendency of this writ petition was

directed not to be disturbed.”

The Supreme Court in the case of Ghulam Rasool

Lone v. State of J&K reported in (2009) 15 SCC 321

has held as under:

22. If at this late juncture the petitioner is

directed to be promoted to the post of Sub-

Inspector even above Abdul Rashid Rather, the

seniority of those who had been promoted in the

meantime or have been directly recruited would

be affected. The State would also have to pay the

back wages to him which would be a drainage of

public funds. Whereas an employee cannot be

denied his promotion in terms of the rules, the

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same cannot be granted out of the way as a result

whereof the rights of third parties are affected.

The aspect of public interest as also the general

administration must, therefore, be kept in mind

while granting equitable relief.

23. We understand that there would be a heart

burning insofar as the petitioner is concerned,

but then he is to thank himself therefor. If those

five persons, who were seniors to Hamiddulah

Dar filed writ petitions immediately, the High

Court might have directed cancellation of his

illegal promotion. This Court in Maharaj Krishan

Bhatt did not take into consideration all these

aspects of the matter and the binding decision of

a three-Judge Bench of this Court in Govt. of

W.B. v. Tarun K. Roy. The Division Bench of the

High Court, therefore, in our opinion was right

in opining that it was not necessary for it to

follow Maharaj Krishan Bhatt.

The Supreme Court in the case of P.S.

Sadasivaswamy v. State of T.N., reported in (1975) 1

SCC 152 has held as under :

“2. … 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 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.”

x x x

10. The Supreme Court in the case of State of

Uttaranchal v. Shiv Charan Singh Bhandari

reported in (2013) 12 SCC 179 has held as under :

19. From the aforesaid authorities it is clear as

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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.

* * * *

28. 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.

The Supreme Court in the case of C. Jacob v.

Director of Geology and Mining reported in (2008)

10 SCC 115 has held as under :

“10. 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 particulars. The replies to such

representations, cannot furnish a fresh cause of

action or revive a stale or dead claim.”

The Supreme Court in the case of Union of India v.

M.K. Sarkar reported in (2010) 2 SCC 59 has held as

under :

“15. 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

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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.””

(emphasis supplied)

24.In view of aforesaid legal preposition as has been dealt with by

the Supreme Court and also by this Court, the explanation given by the

petitioner in the column of delay, cannot be considered to be a sufficient

cause. Further, the Court is repeatedly saying that delay defeats equity

and in a matter of promotion, it is clear that entertaining a petition

would amount to unsettle the settled position.

25.Admittedly, the petitioner did not approach the Court in time and

the promotion made in favour of respondent Nos.4 and 5 in the years

2014 and 2015 respectively, cannot be questioned in the year 2021,

therefore, the petition apparently suffers from delay and laches.

26.Ex consequentia, the petition, being devoid of merit, stands

dismissed.

(SANJAY DWIVEDI)

JUDGE

ac/-