SIDDHANT v. State Of Chhattisgarh Through Secretary, Department Of Urban

: Mr. Vivek Kumar Agrawal, Advocate : Mr. Raj Kumar Gupta, Addl. Advocate General : Mr. Ashutosh Singh Kachhawaha, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

06.2025

1. By way of this petition, the petitioner has sought the following relief(s):- “10.1 That, this Hon'ble Court may kindly be pleased to issue appropriate writ/writs/ directions to the respondent authorities, especially respondent no.3, to consider the case of the petitioner for promotion on the post of Health Officer, in view of recommendations made by DPC on 26.06.1997 and may be granted all other consequential reliefs along with interest. 2

10.2 That, the respondents are directed to immediate reinstate the petitioner to the post of Forest Ranger with all consequential benefits including the promotion and salary on the higher post similarly situated employee services have been promoted from the date of similarly situated promotion of employee.

10.3 Any other relief or relief(s) which this Hon'ble Court may think proper in view of the facts and circumstances of the case may also kindly be granted.”

2. The facts of the present case are that the petitioner was initially appointed as Lower Division Clerk under respondent No. 3 vide order dated

17.12.1981. On 02.06.1983, he was appointed as Sanitary Inspector and a resolution was also passed by the Permanent Committee in this regard on

05.09.1985. The name of the petitioner was recommended for promotion to the post of Assistant Health Officer by the Permanent Committee of respondent No. 3 vide resolution dated 26.06.1997 and an order was also issued in this regard on 16.7.1997. The name of the petitioner was recommended for promotion in anticipation of approval from the State but no specific order was passed by the State, therefore, the petitioner made a representation before the respondent authorities. The petitioner was promoted to the post of Senior Sanitary Inspector vide order dated

16.06.2017. The petitioner filed this petition on 14.07.2017 seeking therein a direction to respondent No. 3 to consider his claim for promotion to the post of Assistant Health Officer pursuant to the recommendation dated

26.06.1997.

3. Mr. Vivek Agrawal, Advocate appearing for the petitioner would submit that the name of the petitioner was recommended for promotion to the post of Assistant Health Officer by the Permanent Committee on 26.06.1997 and a specific order was also issued regarding promotion on 16.7.1997. The petitioner was discharging his duties attached to the said post. He would further submit that there was no reason or occasion for the respondent 3 authorities to promote the petitioner to the post of Senior Sanitary Inspector as he was already promoted to the post of Assistant Health Officer. He would also submit that according to Rule 12 of Chhattisgarh Municipal Employee (Recruitment and Service Conditions) Rules, 1968, the name of the petitioner was recommended by the Selection Committee to the Permanent Committee for promotion to the next higher post and the decision of Permanent Committee is final according to provisions of the said rule. He would contend that there was no need for approval from the State as the petitioner was already promoted to the post of Assistant Health Officer, therefore, a direction may be issued to the respondent authorities to grant all benefits attached to the post according to the promotion order dated 16.07.1997 (Annexure P/6).

4. On the other hand, Mr. Ashutosh Singh Kachhawaha, counsel for respondent No. 3 would submit that Section 58 of the Municipal Corporation Act, 1956 (hereinafter referred to as “Act, 1956”) deals with the appointment and services of Corporation officers and servants. He would contend that according to the provisions of Section 58(1)(iii) every appointment to be made by [Mayor-in-Council] shall be subject to the prior confirmation of the State Government. He would also submit that the name of the petitioner was recommended for promotion to the post of Assistant Health Officer in anticipation of approval from the State, but no approval was accorded by the State, therefore, the petitioner could never be promoted to the post of Assistant Health Officer. He would further contend that looking to the qualification and experience, the petitioner was promoted to the post of Senior Sanitary Inspector vide order dated

16.06.2017. He would further contend that in this petition, the petitioner has sought a direction to respondent No. 3 to consider his claim for promotion 4 to the post of Assistant Health Officer from 26.06.1997 and this petition has been filed in the year 2017 without explaining the delay. He would also contend that the instant petition deserves to be dismissed.

5. Mr. Rajkumar Gupta, Addl. Advocate General appearing for the State would also support the contention made by Mr. Kachhawaha. He would specifically submit that the instant petition is hit by delay and laches.

6. I have heard learned counsel appearing for the parties and perused the documents placed on the record.

7. Section 58 (1)(iii) of the Act, 1956 reads as under:- “58(1)(iii) every appointment to be made by the [Mayor-in- Council] shall be subject to the prior confirmation of the State Government. The decision of the State Government in this behalf shall be final.”

8. A bare reading of this provision would make it clear that every appointment made by the Mayor-in-Council would be subject to the prior confirmation of the State Government.

9. In the present case, the name of the petitioner was found suitable for the promotion to the post of Assistant Health Officer and his name was recommended for promotion to the said post to the State Government in anticipation of approval. The State Government did not accord any approval in favour of the petitioner; therefore, the petitioner could not be promoted to the said post. The petitioner was promoted to the post of Senior Sanitary Inspector vide order dated 16.06.2017, and thereafter, the petitioner filed this petition.

10. With regard to the applicability of the Chhattisgarh Municipal Employee (Recruitment and Service Conditions) Rules, 1968, the rules were framed according to the provisions of the Municipal Corporation Act, 1961. The name of the petitioner was recommended by the Commissioner, Municipal 5 Corporation, Bilaspur pursuant to a decision taken by the Permanent Committee in its meeting dated 26.06.1997. In the order dated 16.07.1997, it is specifically observed that the petitioner would be entitled to the benefits after the approval of the State Government.

11. The recommendation made by the Municipal Corporation was not approved by the State Government, meanwhile, the State Government notified the Chhattisgarh Municipal Corporation (Appointment, Conditions and Service of Officers and Servants) Rules, 2007. According to the provisions of Section 58 (1)(iii), every appointment shall be subject to prior confirmation of the State Government. The petitioner did not approach the higher authorities or Court seeking a direction to the State Government to accord approval and finally, he was promoted to the post of Senior Sanitary Inspector vide order dated 16.06.2017.

12. According to the Rules, 2007, the eligibility criteria for the post of Assistant Health Officer were an MBBS degree from a recognized university and the method of recruitment is 100% by direct recruitment.

13. The services of the petitioner are governed according to the provisions of the Municipal Corporation Act, 1956; therefore, the Rules, 1968 would not attract and the contention made by Mr. Agrawal appears to be misconceived.

14. With regard to the delay and laches, the name of the petitioner was recommended for promotion to the post of Assistant Health Officer in the year 1997, but the petitioner waited till 2017, when he was promoted to the post of Senior Sanitary Inspector and he has not explained the delay properly. In para 7 of the writ petition, he has categorically stated that there is no delay in filing the present petition.

15. The Hon’ble Supreme Court while dealing with the issue of delay and 6 laches in the matter of Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu reported in (2014) 4 SCC 108 held as under:- ‘17. 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 remain unauthorizedly 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.

16. The Hon’ble Supreme Court in the matter of Rushibhai Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation reported in 2022 SCC Online SC 64 held as under:- ‘9. The doctrine of delay and laches, or for that matter statutes of limitation, are considered to be statutes of repose and statutes of peace, though some contrary opinions have been expressed (in Nav Rattanmal Vs. state of Rajasthan, AIR 1961 SC 1704). The courts have expressed the view that the law of limitation rests on the foundations of greater public interest for three reasons, namely, (a) that long dormant claims have more of cruelty than justice in them; (b) that a defendant might have lost the evidence to disapprove a stale claim; and (iii) that persons with good causes of action (who are able to enforce them) should pursue them with reasonable diligence (State of Kerala Vs. V.R. Kalliyanikutty, (1999) 3 SCC 657 relying on Halsbury’s Laws of England, 4th Edn., Vol. 28, para 605; Halsbury’s Laws of England , Vol. 68 (2021) para 1005. Equally, change in de facto position or character, creation of third party rights over a period of time, waiver, acquiesce, and need to ensure certitude in dealings, are equitable public policy considerations why 7 period of limitation is prescribed by law. Law of limitation does not apply to writ petitions, albeit the discretion vested with a constitutional court is exercised with caution as delay and laches principle is applied with the aim to secure the quiet of the community, suppress fraud and perjury, quicken diligence, and prevent oppression.(see Popat and Kotecha Property Vs. State Bank of India Staff Association (2005) 7 SCC 510).Therefore, some decisions and judgments do not look upon pleas of delay and laches with favour, especially and rightly in cases where the persons suffer from adeptness, or incapacity to approach the courts for relief. However, other decisions, while accepting the rules of limitation as well as delay and laches, have observed that such rules are not meant to destroy the rights of the parties but serve a larger public interest and are founded on public policy. There must be a lifespan during which a person must approach the court for their remedy. Otherwise, there would be unending uncertainty as to the rights and obligations of the parties. (See N. Blarkrishnan Vs. M. Krishnamurthy, (1998)7 SCC 123. Referring to the principle of delay and laches, this Court, way back in Moons Mils Ltd Vs. M.R. Mehar, President, Industrial Court, Bombay AIR 1967 SC 1450, had referred to the view expressed by Sir Barnes Peacock in The Lindsay Petroleum Company and Prosper Armstrong Hurd, Abram Farewell, and John Kemp, (L.R.) 5 P.C.221 in the following words: “ Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine, Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by this 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.”

17. The Hon’ble Supreme Court in the matter of Bichitrananda Behera Vs. State of Orissa and others reported in 2023 Livelaw (SC) 883, under relevant para 21 held as under:- “21. Profitably, we may reproduce relevant 8 passagesfrom certain decisions of this Court: (A) Union of India v Tarsem Singh, (2008) 8 SCC 648: “To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” (emphasis supplied) (B) Union of India v N Murugesan, (2022) 2 SCC 25 "Delay, laches and acquiescence

20. The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create non consideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the court. 9 Laches

21. The word “laches” is derived from the French language meaning “remissness and slackness”. It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.

22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy on a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy.

23. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence. Acquiescence

24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other.

25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a 10 consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to- case basis.” (emphasis supplied) (C) Chairman, State Bank of India v M J James, (2022) 2 SCC 301: “36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is nonexistent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case. Xxx

38. In Ram Chand v. Union of India [Ram Chand v. Union of India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem 11 Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action.The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v.Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 1213) “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 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.’

13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court 12 should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?”

39. Before proceeding further, it is important to clarify distinction between “acquiescence” and “delay and laches”. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See “Introduction”, U.N. Mitra, Tagore Law Lectures — Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence.

40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of 13 estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.”

18. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. 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. A court is not expected to give indulgence to such indolent persons, such delay does not deserve any indulgence and on the said ground alone this Court deems it appropriate to dismiss this petition at the very threshold. The doctrine of delay and laches, or for that matter statutes of limitation are considered to be statutes of repose and statutes of peace. There must be a lifespan during which a person must approach the court for their remedy. Otherwise, there would be unending uncertainty as to the rights and obligations of the parties.

19. Taking into consideration the fact discussed-above, the provisions of Section 58(1)(iii) of the Act, 1956 and the unexplained delay, in the opinion of this Court, no case is made out for interference.

20. Consequently, the instant petition fails and is hereby dismissed. No cost(s). $iddhant Sd/- (Rakesh Mohan Pandey) Judge