R.Selvaraj v. The Agricultural Production Commissioner and Principal Secretary to the Government, Agriculture Department, Chief Secretariat, Chennai-600 009

1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 28.09.2011C O R A MTHE HONOURABLE MR.JUSTICE S.MANIKUMARW.P.(MD).No.11154 of 2011R.Selvaraj ... PetitionerVs.The Agricultural Production Commissioner andPrincipal Secretary to the Government,Agriculture Department,Chief Secretariat,Chennai-600 009. ... RespondentPRAYER: Petition filed under Article 226 of the Constitution of Indiapraying for a Writ of Mandamus, directing the respondent to dispose ofthe petitioner's representation dated 01.06.2011 for refixing thepetitioner's seniority in the cadre of Foreman and consequent seniorityin the cadre of Junior Engineer on merits within a specified time frame.For petitioner: Mr.S.VisvalingamFor Respondent: Mr.S.Chandrasekar Government AdvocateO R D E RAt the fag end of the service, the petitioner, aged 56 andworking as Assistant Engineer under the control of Executive Engineer(Agri Engineering), Madurai, has made a representation dated 01.06.2011to the Agricultural Production Commissioner and Principal Secretary toGovernment, Agricultural Department for refixing his seniority in thecadre of Foreman and consequently, refix his seniority in the cadre ofJunior Engineer on merits and pass appropriate orders.2. Pleadings and material on record shows that the petitioner,joined the department on 12.12.1980. When he was expecting promotion, onthe basis of his placement in a list, dated 31.12.1980, prepared by theChief Engineer (Agro Engineering), Chennai, for the post of JuniorEngineer, all the 182 persons holding diploma qualification were promotedas Junior Engineers, except 9 persons including the petitioner.3. It is the grievance of the petitioner that subsequently whenhis turn came up, he was not considered for promotion to the post ofJunior Engineer. But directly recruited foremen were given promotion asJunior Engineers. Lateron, the petitioner was promoted as Junior Engineerin the year 1998 and bit is the case of the petitioner that before hispromotion to the abovesaid post, 27 persons, who were juniors to him andwho did not even enter the service, at the time of preparation ofconsolidated list dated 31.12.1980 of the Chief Engineer, Chennai, havebeen promoted. It is the case of the petitioner that he made repeatedrepresentations to the Government to refix his seniority in the cadre offoreman, on par with the 175 persons, who were already promoted in theyears 1983, 1984 and 1985. As the representations did not yield any https://hcservices.ecourts.gov.in/hcservices/ 2response, he further made a representation, dated 01.06.2011 to theAgricultural Production Commissioner and Principal Secretary toGovernment.4. Pleadings and material on record further disclose thatpromotions to the post of Junior Engineer, on the basis of theconsolidated list dated 31.12.1980, stated supra, have been made in theyear 1983, 1984 and 1985. The petitioner has also been subsequentlypromoted as Assistant Engineer. Now, after nearly 26 years, he has senta representation to the Agricultural Production Engineer/PrincipalSecretary to the Government, Agricultural Department, to refix hisseniority in the cadre of foreman and consequently in the post of JuniorEngineer. 5. Section 35$(f) of the Tamil Nadu State & Subordinate ServicesRules is applicable to the case of the petitioner and it reads asfollows:“Application for the revision of seniority of aperson in a service, class, category or grade shall besubmitted to the appointing authority within a period of 3years from the date of appointment to such service, class,category or grade or within a period of 3 years from thedate of order fixing the seniority, as the case may be. Anyapplication received after the said period of 3 years shallbe summarily rejected.”6. Reference can also be made to few decisions of the SupremeCourt, where inordinate delay and laches, on the part of the litigant inapproaching the Court has been disapproved:(i) In P.S.Sadasivaswamy v. State of Tamil Nadu reported in AIR1974 SC 2271, relating to promotion, the Apex Court held as follows;-"....... A person aggrieved by an order of promoting ajunior over his head should approach the Court at least withinsix months or at the most a year of such promotion. It is notthat there is any period of limitation for the Courts toexercise their powers under Article 226 nor is it that therecan never be a case where the Courts cannot interfere in amatter after the passage of a certain length of time. But itwould be a sound and wise exercise of discretion for the Courtsto refuse to exercise their extraordinary powers under Article226 in the case of persons who do not approach it expeditiouslyfor relief and who stand by and allow things to happen and thenapproach the Court to put forward stale claims and try tounsettle settled matters. The petitioner’s petition should,therefore, have been dismissed in limine. Entertaining suchpetitions is a waste of time of the Court. It clogs the work ofthe Court and impedes the work of the Court in consideringlegitimate grievances as also its normal work. We consider thatthe High Court was right in dismissing the appellant’s petitionas well as the appeal."(ii) In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC1006, the Supreme Court held that it is not either unreasonable delaydenies to the petitioner the discretionary extraordinary remedy of https://hcservices.ecourts.gov.in/hcservices/ 3mandamus, certiorari or any other relief. (iii) In State of M.P., v. Nandlal Jaismal reported in 1986 (4)SCC 566, the Supreme Court, at Paragraph 24, held as follows:"24. Now, it is well settled that the power of the HighCourt to issue an appropriate writ under Article 226 of theConstitution is discretionary and the High Court in theexercise of its discretion does not ordinarily assist thetardy and the indolent or the acquiescent and the lethargic.If there is inordinate delay on the part of the petitioner infiling a writ petition and such delay is not satisfactorilyexplained, the High Court may decline to intervene and grantrelief in the exercise of its writ jurisdiction. The evolutionof this rule of laches or delay is premised upon a number offactors. The High Court does not ordinarily permit a belatedresort to the extraordinary remedy under the writ jurisdictionbecause it is likely to cause confusion and publicinconvenience and bring in its train new injustices. Therights of third parties may intervene and if the writjurisdiction is exercised on a writ petition filed afterunreasonable delay, it may have the effect of inflicting notonly hardship and inconvenience but also injustice on thirdparties. When the writ jurisdiction of the High Court isinvoked, unexplained delay coupled with the creation of thirdparty rights in the meanwhile is an important factor whichalways weighs the High Court in deciding whether or not toexercise such jurisdiction. We do not think it necessary toburden this judgment with reference to various decisions ofthis Court where it has been emphasised time and again thatwhere there is inordinate and unexplained delay and thirdparty rights are created in the intervening period, the HighCourt would decline to interfere, even if the State actioncomplained of is unconstitutional or illegal. .........Ofcourse, this rule of laches or delay is not a rigid rule whichcan be cast in a strait jacket formula, for there may be caseswhere despite delay and creation of third party rights theHigh Court may still in the exercise of its discretioninterfere and grant relief to the petitioner. But, such caseswhere the demand of justice is so compelling that the HighCourt would be inclined to interfere in spite of delay orcreation of third party rights would by their very nature befew and far between. Ultimately it would be a matter withinthe discretion of the court; ex hypothesi every discretionmust be exercised fairly and justly so as to promote justiceand not to defeat it."(iv) In State of Maharastra v. Digambar reported in AIR 1995 SC1991, the Supreme Court, considered a case, where compensation for theacquired land was claimed belatedly and at Paragraphs 12, 18 and 21, heldas follows:"12. How a person who alleges against the State ofdeprivation of his legal right, can get relief of compensationfrom the State invoking writ jurisdiction of the High Courtunder article 226 of the Constitution even though, he is guilty https://hcservices.ecourts.gov.in/hcservices/ 4of laches or undue delay is difficult to comprehend, when it iswell settled by decision of this Court that no person, be he acitizen or otherwise, is entitled to obtain the equitablerelief under Article 226 of the Constitution if his conduct isblame-worthy because of laches, undue delay, acquiescence,waiver and the like. Moreover, how a citizen claimingdiscretionary relief under Article 226 of the Constitutionagainst a State, could be relieved of his obligation toestablish his unblameworthy conduct for getting such relief,where the State against which relief is sought is a welfareState, is also difficult to comprehend. Where the relief soughtunder Article 226 of the Constitution by a person against thewelfare State is founded on its alleged illegal or wrongfulexecutive action, the need to explain laches or undue delay onhis part to obtain such relief, should, if anything, be morestringent than in other cases, for the reason that the Statedue to laches or undue delay on the part of the person seekingrelief, may not be able to show that the executive actioncomplained of was legal or correct for want of recordspertaining to the action or for the officers who wereresponsible for such action not being available later on.Further, where granting of relief is claimed against the Stateon alleged unwarranted executive action, is bound to result inloss to the public exchequer of the State or in damage to otherpublic interest, the High Court before granting such relief isrequired to satisfy itself that the delay or laches on the partof a citizen or any other person in approaching for reliefunder Article 226 of the Constitution on the alleged violationof his legal right, was wholly justified in the facts andcircumstances, instead of ignoring the same or lenientlyconsidering it. Thus, in our view, persons seeking reliefagainst the State under Article 226 of the Constitution, bethey citizens or otherwise, cannot get discretionary reliefobtainable thereunder unless they fully satisfy the High Courtthat the facts and circumstances of the case clearly justifiedthe laches or undue delay on their part in approaching theCourt for grant of such discretionary relief. Therefore, wherea High Court grants relief to a citizen or any other personunder Article 226 of the Constitution against any personincluding the State without considering his blame-worthyconduct, such as laches or undue delay, acquiescence or waiver,the relief so granted becomes unsustainable even if the reliefwas granted in respect of alleged deprivation of his legalright by the State.18.Laches or undue delay, the blame-worthy conduct of aperson in approaching a Court of Equity in England forobtaining discretionary relief which disentitled for grant ofsuch relief was explained succinctly by Sir Barnes Peacock,long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874)5 PC 221) thus :"Now the doctrine of laches in Courts ofEquity 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, donethat which might fairly be regarded as equivalent to a https://hcservices.ecourts.gov.in/hcservices/ 5waiver of it, or where by his conduct and neglect hehas, though perhaps not waiving that remedy, yet putthe other party in a situation, in which it would notbe reasonable to place him if the remedy wereafterwards to be asserted, in either of these cases,lapse of time and delay are most material. But inevery case, if an argument against relief, whichotherwise would be just, is founded upon mere delay,that delay of course not amounting to a bar by anystatute or limitations, the validity of that defencemust be tried upon principles substantially equitable.Two circumstances, always important in such cases,are, the length of the delay and the nature of theacts done during the interval, which might affecteither party and cause a balance of Justice orinjustice in taking the one course or the other, sofar as it relates to the remedy."21.Therefore, where a High Court in exercise of itspower vested under Article 226 of the Constitution issues adirection, order or writ for granting relief to a personincluding a citizen without considering his disentitlement ofsuch relief due to his blameworthy conduct of undue delay orlaches in claiming the same, such a direction, order or writbecomes unsustainable as that not made judiciously andreasonably in exercise of its sound judicial discretion, but asthat made arbitrarily."(v) In State of Rajasthan v. D.R.Laxmi reported in 1996 (6) SCC445, the Supreme Court observed that though the order may be void, if theparty does not approach the Court within a reasonable time, which isalways a question of fact and have the order invalidated or acquiesced orwaived, the discretion of the Court has to be exercised in a reasonablemanner.(vi) In Chairman, U.P. Jal Nigam and another v. Jaswant Singhreported in AIR 2007 SC 924, the Supreme Court, after considering acatena of decisions on the aspect of delay, at Paragraph 13, held asfollows:"13........Therefore, whenever it appears that theclaimants lost time or while away and did not rise to theoccasion in time for filing the writ petitions, then in suchcases, the Court should be very slow in granting the relief tothe incumbent. Secondly, it has also to be taken intoconsideration the question of acquiescence or waiver on thepart of the incumbent whether other parties are going to beprejudiced if the relief is granted."7. While dealing with a belated claim and filing of a WritPetition on the basis of the order obtained in some other Writ Petitions,the Supreme Court in M/s.Rup Diamonds and Ors. v. Union of India andOrs., reported in (1989) 2 SCC 356, has observed that those people whowere sitting on the fence till somebody else took up the matter to thecourt for refund of duty, cannot be given the benefit. In that context,Their Lordships held as follows:"Petitioners are re-agitating claims which they hadnot pursued for several years. Petitioners were not vigilant https://hcservices.ecourts.gov.in/hcservices/ 6but were content to be dormant and chose to sit on the fencetill somebody else's case came to be decided. Their casecannot be considered on the analogy of one where a law hadbeen declared unconstitutional and void by a court, so as toenable persons to recover monies paid under the compulsion ofa law later so declared void. There is also an unexplained,inordinate delay in preferring the present writ petitionwhich is brought after a year after the first rejection. Asobserved by the Court in Durga Prashad case, the exchangeposition of this country and the policy of the governmentregarding international trade varies from year to year. Inthese matters it is essential that persons who are aggrievedby orders of the government should approach the High Courtafter exhausting the remedies provided by law, rule or orderwith utmost expedition. Therefore, these delays aresufficient to persuade the Court to decline to interfere. Ifa right of appeal is available, this order rejecting the writpetition shall not prejudice petitioners' case in any suchappeal."8. In S.S. Balu v. State of Kerala, (2009) 2 SCC 479, wherein atparagraph No.17, the Supreme Court has held as follows: "17. It is also well-settled principle of law that“delay defeats equity”. The Government Order was issued on15-1-2002. The appellants did not file any writapplication questioning the legality and validity thereof.Only after the writ petitions filed by others were allowedand the State of Kerala preferred an appeal thereagainst,they impleaded themselves as party-respondents. It is nowa trite law that where the writ petitioner approaches theHigh Court after a long delay, reliefs prayed for may bedenied to them on the ground of delay and lachesirrespective of the fact that they are similarly situatedto the other candidates who obtain the benefit of thejudgment. It is, thus, not possible for us to issue anydirection to the State of Kerala or the Commission toappoint the appellants at this stage. In NDMC v. Pan Singh9this Court held: (SCC p. 283, para 16)“16. There is another aspect of the matter whichcannot be lost sight of. The respondents herein filed awrit petition after 17 years. They did not agitate theirgrievances for a long time. They, as noticed herein, didnot claim parity with the 17 workmen at the earliestpossible opportunity. They did not implead themselves asparties even in the reference made by the State beforethe Industrial Tribunal. It is not their case that after1982, those employees who were employed or who wererecruited after the cut-off date have been granted thesaid scale of pay. After such a long time, therefore,the writ petitions could not have been entertained evenif they are similarly situated. It is trite that thediscretionary jurisdiction may not be exercised infavour of those who approach the court after a longtime. Delay and laches are relevant factors for exerciseof equitable jurisdiction.” https://hcservices.ecourts.gov.in/hcservices/

79. Following the decisions of the Hon'ble Supreme Court andhaving regard to rule 35$(f) of Tamil Nadu State & Subordinate ServiceRules, this Court is of the view that there is no statutory or legalright to seek a mandamus to consider his representation dated 01.06.2011,for revision of seniority, after so many years. Any direction from thisCourt to consider the representation for revision of seniority in thepost of Foreman and Junior Engineer, at this length of time, wouldtantamount to resurrecting a dead matter. Courts have consistently heldthat sale matters should not be adjudicated and in the light of theabove, this Court is not inclined to issue any writ. In such view of thematter, the writ petition is liable to be dismissed. 10.The Writ Petition is dismissed accordingly. No costs. Sd/-Assistant Registrar (AE)/True copy/Sub Assistant Registrar ToThe Agricultural Production Commissioner andPrincipal Secretary to the Government,Agriculture Department,Chief Secretariat, Chennai-600 009. +1CC TO THE SPECIAL GOVERNMENT PLEADER, SR.33860VSSR : 21.10.2011 : 7p/3cW.P.(MD).No.11154 of 201128.09.2011