Anurag Sharma v. State of Chhattisgarh

State of Chhattisgarh Through- The Secretary, Department of Urban Administration and Development, Mahanadi Bhawan, Atal Nagar, Nava Raipur, (C.G.)

The Director Department of Urban Administration and Development, Indravati Bhavan, Atal Nagar, Nava Raipur, (C.G.)

The Joint Director (Regional OfÏce) Raipur Division, Department of Urban Administration and Development, Having its ofÏce at 2nd Floor, Subhash Stadium, In Front of Motibagh, Raipur (C.G.) ...Respondent(s) For Appellant For Respondent/State : : Mr. Sharad Mishra, Advocate. Mr. Sangharsh Pandey, Government Advocate. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE 10:38:02 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Per Ramesh Sinha , Chief Justice Judgment on Board 24 .03.2025

1. Heard Mr. Sharad Mishra, learned counsel for the appellant. Also heard Mr. Sangharsh Pandey, learned Government Advocate, appearing for the State.

2. The present intra Court appeal has been filed by the appellant against the order dated 14.01.2025 passed by the learned Single Judge in WPS No. 7209 of 2018 (Anurag Sharma vs. State of Chhattisgarh & Others), whereby the learned Single Judge has dismissed the writ petition filed by the appellant/writ petitioner herein.

Learned counsel for the appellant submits that the appellant is a degree holder of Bachelor in Engineering (B.E.), was initially appointed on

11.05.2006 on the post of Sub Engineer at Nagar Palika Nigam, Beergaon where he was working efÏciently, diligently, sincerely and with due honesty to the satisfaction of his superior authorities. In the year 2015, proceedings for departmental promotion to the post of Assistant Engineer from the post of Sub Engineer were initiated and in connection therewith, the Chief Municipal OfÏcer, Nagar Panchayat, Simga directed the appellant to submit his year wise confidential reports and description of his immovable property in the Directorate of Urban Administration and Development, which accordingly submitted by the appellant. He further submits that despite submission of all the relevant documents when no 3 promotion was being granted to the appellant, he submitted a reminder letter on 21.04.2017 to respondent No. 4 stating therein that delay in promotion of the appellant, despite he being fully eligible, is affecting his service career adversely and thereafter, also he kept on reminding the respondent authorities for grant of promotion to him to the post of Assistant Engineer. However, as despite the appellant being fully eligible for promotion to the post of Assistant Engineer and submission of representations/reminders to the respondent authorities in this regard and there being various circulars of the department for filling up the promotional posts, the respondent authorities are not paying any heed to the request of the appellant, which is adversely affecting the service prospects, including the seniority, of the appellant.

It is further stated by the learned counsel for the appellant that the appellant preferred a writ petition bearing WPS No. 4162 of 2018, whereby this Court by vide order dated 26.06.2018 has disposed off the petition with the direction that the Director, Urban Administration and Development Department to take appropriate steps regarding the aforesaid/recommendation within six weeks from the date of receipt of copy of this order according to the law and procedure. He also stated that in compliance to the order passed by this Court, the appellant vide order dated 28.07.2018 has been given promotion to the post of Assistant Engineer from the date of passing of the order dated 28.07.2018 in defiance to the Rule 10(1) Schedule III of the Rules, 2007 whereby he ought to have been promoted to the post of Assistant Engineer from May, 2014 after completion of 8 years of the service on the post of Sub- Engineer. Being aggrieved by the said illegal, arbitrary and erroneous 4 action of the respondent authorities, the appellant filed a writ petition bearing WPS No. 7209 of 2018. The learned Single Judge vide order dated 14.01.2025 dismissed the said writ petition filed by the appellant.

Learned counsel for the appellant would submit that the impugned order dated 14.01.2024 passed by the learned Single Judge is illegal, erroneous, perverse. He further submits that promotion to the post of Assistant Engineer is to be made on the basis of completion of 08 years of qualifying services as per Rules, 2007 on the post of Sub-Engineer and as the appellant possesses the requisite qualification, the respondent authorities ought to have considered him for promotion from the month of May, 2014 i.e. from the month he has completed 08 years of services on the post of Sub-Engineer.

It is further contended by the learned counsel for the appellant that the learned Single Judge has erroneously dismissed the writ filed by the appellant solely on the ground of delay and laches on part of the appellant in filing the writ petition. He also contended that there was no inordinate or deliberate delay by the appellant in filing the writ petition, which is amply evident from the documents placed on record that the appellant was actively pursuing the matter related to his promotion and was regularly complying with the directions and orders given by the respondent authorities. Moreover, the appellant was regularly sending communications to the respondent authorities for the purpose of his promotion. Hence, the order passed by the learned Single Judge dated

14.01.2025 is untenable in the eyes of law and deserves to be quashed.

On the other hand, learned State counsel submits that the learned 5 Single Judge after considering all the aspects of the matter has rightly dismissed the writ petition filed by the appellant/writ petitioner, in which no interference is called for. He further submits that the appellant has claimed promotion from May, 2014, whereas the WPS No. 7209 of 2018 was filed on 22.10.2018 i.e. after four years and the appellant has not explained the delay properly and thus, the learned Single Judge dismissed the said petition on the grounds of delay and laches.

We have heard learned counsel for the parties and perused the impugned judgment and materials available on record.

The learned Single Judge relied on the judgment passed by the Hon'ble Supreme Court 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 6 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.”

Further, the learned Single Judge also relied on the judgment passed by the Hon’ble Apex 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 period of limitation is prescribed by law. Law of 7 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 8 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.”

The learned Single also relied on the judgment passed by 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 passages from 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 9 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

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 10 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. Laches

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.

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.

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 11 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

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

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 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.

In Ram Chand v. Union of India [Ram Chand v. 13 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 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.

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 should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into 15 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?”

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 16 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.

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, laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of 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.” 17

While passing the impugned order, learned Single Judge held that it is the duty of the Court to scrutinize whether such enormous delay 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, such delay does not deserve any indulgence and on the said ground alone learned Single Judge deems it appropriate to dismiss the writ 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.

Thus, the learned Single in light of the judgments passed by the Hon'ble Supreme Court in the matters of Chennai Metropolitan Water Supply (supra), Rushibhai Jagdishbhai Pathak (supra) and Bichitrananda Behera (supra), it is quite vivid that the appellant has approached this Court after a delay of 4 years and in paragraph 07 of the writ petition, he has stated that there is no delay in filing the instant petition. The appellant utterly failed to explain the delay caused in filing the petition. Therefore, in the considered opinion of this Court, learned Single Judge has rightly dismissed the petition on the ground of delay and laches.

Considering the pleadings made in writ appeal, submissions 18 advanced by the learned counsel appearing for the parties and also considering the findings recorded by the learned Single Judge while dismissing the writ petition filed by the appellant/writ petitioner, we are of the considered opinion that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error warranting interference by this Court.

Accordingly, the present writ appeal being devoid of merit is liable to be and is hereby dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Chief Justice Judge Brijmohan