L.M.Antony v. The Joint Director of School Education College Road Chennai

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 29/9/2011C O R A MTHE HONOURABLE Mr.JUSTICE S.MANIKUMARW.P.(MD)No.11307 of 2011L.M.Antony...PetitionerVs1. The Joint Director of School Education College Road Chennai.2. The District Chief Educational Officer Sivagangai District.3. The District Chief Educational Officer Ramanathapuram....RespondentsPetition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorarified mandamus to callfor the records of the second respondent pertaining to theproceedings in Na.Ka.No.1998/A4/2011 dated 1/6/2011 and quash thesame and consequently direct the respondents to grant Special GradePay to the petitioner and other monetary benefits.For petitioner ...Mr.S.M.Mohan GandhiFor respondents...Mr.S.Chandrasekar, GAO R D E RAfter twenty years of his retirement, the petitioner seemed tohave made a representation to the respondents to grant selectiongrade scale of pay in the post of Graduate Assistant (B.T Grade).Though the said representation has been considered, there were norecords available in the School where the petitioner had served.2. The abovesaid fact is evident from the proceedings of theChief Educational Officer in R.C.No.4263/A2/2008 dated 24/4/2008 and3/6/2008. Though the above said authority, has made genuine effortsto obtain the service register and observing that the servicerendered in the post of B.T.Assistant and Middle School Head Masterare in different cadre and that therefore, the petitioner cannot begranted Selection Grade, he has rejected the request of thepetitioner for grant of Selection Grade. The confirmation ofselection/special pay is not automatic on completion of ten or twentyyears of service. https://hcservices.ecourts.gov.in/hcservices/

23. It is well settled that, if a person has a legal orstatutory right to be enforced against the respondents, he shouldventilate his grievance before the competent authorities, or theCourt of law within a time limit, if provided under the statutoryrules or any Government Orders issued from time to time. If there isno such Government Order or Statutory rule prescribing a specifictime limit, then such person whose rights are infringed or denied anybenefit, arising out of any Government Order, ought to haveapproached the Court, within a reasonable time. 4. What is reasonable time has not been spelt out in any rule.However, the Supreme Court in Veerayeeammal v. Seeniammal reported in 2002(1) SCC 134, has explained the words "reasonable time", and at Paragraph13, the Supreme Court held as follows:"13. The word “reasonable” has in law prima faciemeaning of reasonable in regard to those circumstances ofwhich the person concerned is called upon to actreasonably knows or ought to know as to what wasreasonable. It may be unreasonable to give an exactdefinition of the word “reasonable”. The reason varies inits conclusion according to idiosyncrasy of theindividual and the time and circumstances in which hethinks. The dictionary meaning of the “reasonable time”is to be so much time as is necessary, under thecircumstances, to do conveniently what the contract orduty requires should be done in a particular case. Inother words it means, as soon as circumstances permit. InP. Ramanatha Aiyar’s The Law Lexicon it is defined tomean: “A reasonable time, looking at all thecircumstances of the case; a reasonable timeunder ordinary circumstances; as soon ascircumstances will permit; so much time as isnecessary under the circumstances, convenientlyto do what the contract requires should bedone; some more protracted space than‘directly’; such length of time as may fairly,and properly, and reasonably be allowed orrequired, having regard to the nature of theact or duty and to the attending circumstances;all these convey more or less the same idea.”5. The delay and laches on the part of the petitioners is perse apparent. In this context, this Court deems it fit to extract fewdecisions dealing with delay and laches, which are as follows:(i) In P.S.Sadasivaswamy v. State of Tamil Nadu reported inAIR 1974 SC 2271, the Apex Court held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 3"....... A person aggrieved by an order of promotinga junior over his head should approach the Court at leastwithin six months or at the most a year of such promotion.It is not that there is any period of limitation for theCourts to exercise their powers under Article 226 nor is itthat there can never be a case where the Courts cannotinterfere in a matter after the passage of a certain lengthof time. But it would be a sound and wise exercise ofdiscretion for the Courts to refuse to exercise theirextraordinary powers under Article 226 in the case ofpersons who do not approach it expeditiously for relief andwho stand by and allow things to happen and then approachthe Court to put forward stale claims and try to unsettlesettled matters. The petitioner’s petition should,therefore, have been dismissed in limine. Entertaining suchpetitions is a waste of time of the Court. It clogs thework of the Court and impedes the work of the Court inconsidering legitimate grievances as also its normal work.We consider that the High Court was right in dismissing theappellant’s petition as 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 ofmandamus, 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 theHigh Court to issue an appropriate writ under Article 226of the Constitution is discretionary and the High Court inthe exercise of its discretion does not ordinarily assistthe tardy and the indolent or the acquiescent and thelethargic. If there is inordinate delay on the part of thepetitioner in filing a writ petition and such delay is notsatisfactorily explained, the High Court may decline tointervene and grant relief in the exercise of its writjurisdiction. The evolution of this rule of laches ordelay is premised upon a number of factors. The High Courtdoes not ordinarily permit a belated resort to theextraordinary remedy under the writ jurisdiction becauseit is likely to cause confusion and public inconvenienceand bring in its train new injustices. The rights of thirdparties may intervene and if the writ jurisdiction isexercised on a writ petition filed after unreasonabledelay, it may have the effect of inflicting not onlyhardship and inconvenience but also injustice on thirdparties. When the writ jurisdiction of the High Court isinvoked, unexplained delay coupled with the creation ofthird party rights in the meanwhile is an important factor https://hcservices.ecourts.gov.in/hcservices/ 4which always weighs the High Court in deciding whether ornot to exercise such jurisdiction. We do not think itnecessary to burden this judgment with reference tovarious decisions of this Court where it has beenemphasised time and again that where there is inordinateand unexplained delay and third party rights are createdin the intervening period, the High Court would decline tointerfere, even if the State action complained of isunconstitutional or illegal. .........Of course, this ruleof laches or delay is not a rigid rule which can be castin a strait jacket formula, for there may be cases wheredespite delay and creation of third party rights the HighCourt may still in the exercise of its discretioninterfere and grant relief to the petitioner. But, suchcases where the demand of justice is so compelling thatthe High Court would be inclined to interfere in spite ofdelay or creation of third party rights would by theirvery nature be few and far between. Ultimately it would bea matter within the discretion of the court; ex hypothesievery discretion must be exercised fairly and justly so asto promote justice and 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 ofcompensation from the State invoking writ jurisdiction ofthe High Court under article 226 of the Constitution eventhough, he is guilty of laches or undue delay is difficultto comprehend, when it is well settled by decision of thisCourt that no person, be he a citizen or otherwise, isentitled to obtain the equitable relief under Article 226of the Constitution if his conduct is blame-worthy becauseof laches, undue delay, acquiescence, waiver and the like.Moreover, how a citizen claiming discretionary relief underArticle 226 of the Constitution against a State, could berelieved of his obligation to establish his unblameworthyconduct for getting such relief, where the State againstwhich relief is sought is a welfare State, is alsodifficult to comprehend. Where the relief sought underArticle 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 delayon his part to obtain such relief, should, if anything, bemore stringent than in other cases, for the reason that theState due to laches or undue delay on the part of theperson seeking relief, may not be able to show that theexecutive action complained of was legal or correct for https://hcservices.ecourts.gov.in/hcservices/ 5want of records pertaining to the action or for theofficers who were responsible for such action not beingavailable later on. Further, where granting of relief isclaimed against the State on alleged unwarranted executiveaction, is bound to result in loss to the public exchequerof the State or in damage to other public interest, theHigh Court before granting such relief is required tosatisfy itself that the delay or laches on the part of acitizen or any other person in approaching for relief underArticle 226 of the Constitution on the alleged violation ofhis 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 HighCourt that the facts and circumstances of the case clearlyjustified the laches or undue delay on their part inapproaching the Court for grant of such discretionaryrelief. Therefore, where a High Court grants relief to acitizen or any other person under Article 226 of theConstitution against any person including the State withoutconsidering his blame-worthy conduct, such as laches orundue delay, acquiescence or waiver, the relief so grantedbecomes unsustainable even if the relief was granted in respect of alleged deprivation of hislegal right by the State.18. Laches or undue delay, the blame-worthy conductof a person in approaching a Court of Equity in England forobtaining discretionary relief which disentitled for grantof such relief was explained succinctly by Sir BarnesPeacock, long ago, in Lindsay Petroleum Co. v. ProsperArmstrong (1874) 5 PC 221) thus :"Now the doctrine of laches in Courts ofEquity is not an arbitrary or a technicaldoctrine. Where it would be practically unjust togive a remedy, either because the party has, byhis conduct, done that which might fairly beregarded as equivalent to a waiver of it, or whereby his conduct and neglect he has, though perhapsnot waiving that remedy, yet put the other partyin a situation, in which it would not bereasonable to place him if the remedy wereafterwards to be asserted, in either of thesecases, lapse of time and delay are most material.But in every case, if an argument against relief,which otherwise would be just, is founded uponmere delay, that delay of course not amounting to https://hcservices.ecourts.gov.in/hcservices/ 6a bar by any statute or limitations, the validityof that defence must be tried upon principlessubstantially equitable. Two circumstances, alwaysimportant in such cases, are, the length of thedelay and the nature of the acts done during theinterval, which might affect either party andcause a balance of Justice or injustice in takingthe one course or the other, so far as it relatesto 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 disentitlementof such relief due to his blameworthy conduct of unduedelay or laches in claiming the same, such a direction,order or writ becomes unsustainable as that not madejudiciously and reasonably in exercise of its soundjudicial discretion, but as that made arbitrarily."(v).In State of Rajasthan v. D.R.Laxmi reported in 1996 (6)SCC 445, the Supreme Court observed that though the order may be void, ifthe party 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 a catenaof decisions on the aspect of delay, at Paragraph 13, held as follows:"13........Therefore, whenever it appears thatthe claimants lost time or while away and did not rise tothe occasion in time for filing the writ petitions, then insuch cases, the Court should be very slow in granting therelief to the incumbent. Secondly, it has also to be takeninto consideration the question of acquiescence or waiveron the part of the incumbent whether other parties aregoing to be prejudiced if the relief is granted."6. 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 and Ors.,reported in (1989) 2 SCC 356, has observed that those people who weresitting on the fence till somebody else took up the matter to thecourt for refund of duty, cannot be given the benefit. In thatcontext, Their Lordships held as follows:"Petitioners are re-agitating claims which they hadnot pursued for several years. Petitioners were not vigilantbut were content to be dormant and chose to sit on the fence https://hcservices.ecourts.gov.in/hcservices/ 7till 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."7. Conferment of selection/special grade is also not automaticand as per the decisions of this Court in P.D.Mahadevan v. Secretary toGovernment reported in 2011(6) MLJ 419, the Government servant has tosatisfy the element of satisfactory service. In this context, it is usefulto extract the relevant paragraphs of the said judgment, which are asfollows:"10. In Lalit Mohan Deb v. Union of India (supra) case,"Selection Grade", has been explained as follows:"A promotion post is a higher post with a higherpay. A selection grade has higher pay but in the same post.A selection grade is intended to ensure that capableemployees who (sic) may not get a chance of promotion onaccount of limited outlets of promotions should atleast beplaced in the selection grade to prevent stagnation on themaximum of the scale. Selection grades are, therefore,created in the interest of greater efficiency."11. In the above judgment, the Supreme Court consideredthe recommendations of the Central Pay Commission, recognisingpayment of higher-scale of pay to the employees who have nooutlets or limited outlets for higher posts. Paragraph 10 ofChapter X of the report, considered by the Supreme Court, is re-produced hereunder:"The Commission observed "with the object ofproviding incentive to employees who have no outlets orvery limited outlets for promotion to higher posts, we arerecommending in a number of cases that a certainpercentage of the posts in the grade-usually 10 per cent-should carry a some-what higher scale of pay even thoughthere will be no change in the duties. Following the https://hcservices.ecourts.gov.in/hcservices/ 8terminology in vogue we have described these posts asselection grade posts".12. At paragraph 9, the Supreme Court in the abovejudgment, further held that,"But the absence of such rules is no bar to theAdministration giving instructions regarding promotion tothe higher grade as long as such instructions are notinconsistent with any rule on the subject. The point wasconsidered by this Court in Sant Ram Sharma v. State ofRajasthan AIR 1967 SC 1910 and it was declared that in theabsence of statutory rules regulating promotion to selectiongrade posts the Government is competent to issueadministrative instructions as long as those instructionsare not inconsistent with the rules already framed."8. In the light of the above discussion, this Court is of the viewthat the argument of the learned counsel for the petitioner that in everycase where there is an unreasonable delay or laches, Courts should extendthe benefit of a judgment, cannot be countenanced, in view of the decisionof the Supreme Court in S.S. Balu v. State of Kerala, (2009) 2 SCC 479,wherein at paragraph 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 wasissued on 15-1-2002. The appellants did not file anywrit application questioning the legality and validitythereof. Only after the writ petitions filed by otherswere allowed and the State of Kerala preferred anappeal thereagainst, they impleaded themselves asparty-respondents. It is now a trite law that wherethe writ petitioner approaches the High Court after along delay, reliefs prayed for may be denied to themon the ground of delay and laches irrespective of thefact that they are similarly situated to the othercandidates who obtain the benefit of the judgment. Itis, thus, not possible for us to issue any directionto the State of Kerala or the Commission to appointthe 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 hereinfiled a writ petition after 17 years. They did notagitate their grievances for a long time. They, asnoticed herein, did not claim parity with the 17workmen at the earliest possible opportunity. Theydid not implead themselves as parties even in the https://hcservices.ecourts.gov.in/hcservices/ 9reference made by the State before the IndustrialTribunal. It is not their case that after 1982,those employees who were employed or who wererecruited after the cut-off date have been grantedthe said scale of pay. After such a long time,therefore, the writ petitions could not have beenentertained even if they are similarly situated. Itis trite that the discretionary jurisdiction may notbe exercised in favour of those who approach thecourt after a long time. Delay and laches arerelevant factors for exercise of equitablejurisdiction.”9. In view of the judicial pronouncements of the Apex Court, theWrit Petition stands dismissed. Consequently, the connected miscellaneouspetition is also dismissed. No costs.Sd/- Assistant Registrar(T&P)/True Copy/Sub Assistant RegistrarTo1. The Joint Director of School Education College Road Chennai.2. The District Chief Educational Officer Sivagangai District.3. The District Chief Educational Officer Ramanathapuram.+one cc to Special Government Pleader, Sr.No.34365+1cc to Mr.S.M.Magalingam, Advocate, Sr.No.34229W.P.(MD) No.11307 of 2011mvsSMA/20.10.2011/6C/9P