P.Thandeeswaran v. The Secretary to the GovernmentRevenue Department

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 11.08.2011CORAM:THE HONOURABLE MR.JUSTICE S.MANIKUMARW.P.(MD).No.9051 of 2011P.Thandeeswaran... Petitioner -Vs-1.The Secretary to the GovernmentRevenue Department St. George FortChennai - 600 0092.The Special Commissioner /Commissioner for Revenue AdministrationChepaukChennai - 600 0053.The CollectorMadurai District CollectorateMadurai - 20... RespondentsPRAYER: Petition filed under Article 226 of the Constitution of India,praying for the issuance of Writ of Mandamus directing the firstrespondent to consider the petitioner's representation, dated 14.09.2010and its remainders dated 02.02.2011, 15.03.2011 and the first respondent,direct to the third respondent to give monetary benefits to thepetitioner from 01.11.1984 to till the date of retirement on the basis ofG.O.Ms.No. 400 Revenue (E2) Department dated 15.05.1995.For Petitioner: Mr.B.BommayanFor Respondents: Mr.B.Pugalenthi Special Government PleaderO R D E RThe Writ Petition has been filed by a Retired Deputy Tahsildar, agedabout 63 years, after 8 years of his retirement. Accoring to him, he wasappointed as Record Clerk in the office of the Special Deputy Collector(Kallar Reclamation), Madurai and retired as Deputy Tahsildar, on31.05.2003.2.It is the grievance of the petitioner that his service in thepost of Record Clerk ought to have been regularised from the date ofinitial appointment and consequently, he should have been considered forpromotion to higher post. He has further submitted that as therespondents failed to regularise the services of 17 individuals and theywere constrained to file Writ Petition in W.P.(MD).Nos. 6493 and 5284 of1987 before the Principal Bench of this Court to quash G.O.Ms.No. 733,Revenue Department, dated 05.05.1987, which deprived the period ofservice rendered by the petitioner and others. As per the abovesaidGovernment Order, the date of regularisation was given effect from the https://hcservices.ecourts.gov.in/hcservices/ 2date of issuance of the said Government Order. The Writ Petitions weretransferred by the Tribunal to the Tamil Nadu Administrative Tribunal andnumbered as T.A.Nos. 739 and 741 of 1991. The Tribunal after consideringthe rival claims allowed the abovesaid transferred applications directingthe respondents therein to regularise the services of the applicants fromthe date of their initial appointment as Record Clerk and also orderedfuture service.3.It is the case of the petitioner that pursuant to the ordersstated supra, the Government issued G.O.Ms.No. 400, Revenue (E2)Department, dated 15.05.1995, regularising the services of the petitionerand 15 other persons from the date of their entry into service as RecordClerk with effect from the date of first appointment with consequentialbenefits. 4.Material on record further shows that subsequently Governmenthave issued orders in G.O.Ms.No. 278, (Permanent) Revenue DepartmentServices 3(1) Department, dated 27.08.2002, including the name of thepetitioner in the list of Deputy Tahsildar for the year 1997 afterrelaxing Rule 7(a) of the Revenue Sub-ordinate Services Rules. Materialon record also shows that the District Collector, Madurai, whileconsidering the representation of the writ petitioner, dated 27.09.2006,in R.C.No. 99972/2006/E2, dated 26.11.2006, ordered fixation of pay atRs.8100/- with effect from 01.07.2005 in the cadre of Tahsildar, in thetime scale of pay of Rs.6500-200-10500 under Fundamental Rule 22 (B).5.Perusal of the said order shows that with reference to theorders made by this Court in W.P.(MD).Nos. 4312 and 4428 of 2006, dated01.09.2006 and 03.04.2006 respectively, directions have been issued tothe Collector, Madurai, to include the name of the petitioner in theapproved list of Tahsildar for Madurai District for the year 2004, takinginto consideration the relaxation given under G.O.Ms.No. 212, RevenueDepartment, dated 15.04.2005, with effect from 04.05.2005 and also of thedirections by this Court that the petitioner would be entitled to allother consequential benefits and consquently orders have been issuedfixing the pay of the petitioner in the post of Tahsildar.6.Not satisfied with the above, the petitioner has once again,sent representations, to the Secretary to Government, Revenue Department,Chennai, stating that the benefits of arrears of difference of pay etcfrom 1984 till the revised pay fixation, in the cadre of Assistant andDeputy Tahsildar, has not been granted. It is his further submission inthe representation that pay should be fixed with effect from the date ofjoining of the junior with effect from 01.11.1984 in the cadre ofAssistant and Deputy Tahsildar. As already stated, the petitioner hasretired from service on 31.05.2003. After a lapse of 8 years, he hasfiled the present Writ Petition with an inordinate delay and without anyreasonable explanation. 7.It is well settled that though no specific time limit has beenprescribed under Article 226 of the Constitution of India, to prefer theWrit Petitions, if there is any infringement of theconstitutional/statutory/legal right, the aggrieved person shouldapproach the Court within a reasonable time. Latches or reasonable time arenot defined under any Statute or Rules. "Latches" or "Lashes" is an old french word https://hcservices.ecourts.gov.in/hcservices/ 3for slackness or negligence or not doing. In general sense, it means neglect to dowhat in the law should have been done for an unreasonable or unexplained length oftime. What could be the latches in one case might not constitute in another. Thelatches to non-suit, an aggrieved person person from challenging the acquisitionproceedings should be inferred from the conduct of the land owner or an interestedperson and that there should be a passive inaction for a reasonable length of time.What is reasonable time has not been explained in any of the enactment. Reasonabletime depends upon the facts and circumstances of each case. 8.The words "reasonable time", as explained in Veerayeeammal v.Seeniammal reported in 2002 (1) SCC 134, at Paragraph 13, is as follows:"13. The word “reasonable” has in law prima facie meaningof reasonable in regard to those circumstances of which theperson concerned is called upon to act reasonably knows or oughtto know as to what was reasonable. It may be unreasonable togive an exact definition of the word “reasonable”. The reasonvaries in its conclusion according to idiosyncrasy of theindividual and the time and circumstances in which he thinks.The dictionary meaning of the “reasonable time” is to be so muchtime as is necessary, under the circumstances, to doconveniently what the contract or duty requires should be donein a particular case. In other words it means, as soon ascircumstances permit. In P. Ramanatha Aiyar’s The Law Lexicon itis defined to mean: “A reasonable time, looking at all the circumstances of thecase; a reasonable time under ordinary circumstances; as soon ascircumstances will permit; so much time as is necessary underthe circumstances, conveniently to do what the contract requiresshould be done; some more protracted space than ‘directly’; suchlength of time as may fairly, and properly, and reasonably beallowed or required, having regard to the nature of the act orduty and to the attending circumstances; all these convey moreor less the same idea.”9.The statement of law has also been summarized in Halsbury'sLaws of England, Para 911 , pg. 395 as follows:"In determining whether there has been such delay as toamount 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 thedefendant's part. Acquiescence in this sense does not mean standing by whilethe violation of a right is in progress, but assent after theviolation has been completed and the claimant has become aware ofit. It is unjust to give the claimant a remedy where, by hisconduct, he has done that which might fairly be regarded asequivalent to a waiver of it; or where by his conduct and neglect,though not waiving the remedy, he has put the other party in aposition in which it would not be reasonable to place him if theremedy were afterwards to be asserted. In such cases lapse of timeand delay are most material. Upon these considerations rests thedoctrine of laches." https://hcservices.ecourts.gov.in/hcservices/

410.In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006,the Supreme Court held that it is not either unreasonable delay denies tothe petitioner the discretionary extraordinary remedy of mandamus,certiorari or any other relief. 11.In State of M.P., v. Nandlal Jaismal reported in 1986 (4) SCC566, 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."(emphasis supplied)12.M/s.Rup Diamonds and Ors. v. Union of India and Ors., reported in (1989)2 SCC 356, wherein their Lordships observed that those people who were https://hcservices.ecourts.gov.in/hcservices/ 5sitting on the fence till somebody else took up the matter to the courtfor refund of duty, cannot be given the benefit. In that context, TheirLordships held as follows:"Petitioners are re-agitating claims which they had notpursued for several years. Petitioners were not vigilant butwere content to be dormant and chose to sit on the fence tillsomebody else's case came to be decided. Their case cannot beconsidered on the analogy of one where a law had been declaredunconstitutional and void by a court, so as to enable personsto recover monies paid under the compulsion of a law later sodeclared void. There is also an unexplained, inordinate delayin preferring the present writ petition which is brought aftera year after the first rejection. As observed by the Court inDurga Prashad case, the exchange position of this country andthe policy of the government regarding international tradevaries from year to year. In these matters it is essential thatpersons who are aggrieved by orders of the government shouldapproach the High Court after exhausting the remedies providedby law, rule or order with utmost expedition. Therefore, thesedelays are sufficient to persuade the Court to decline tointerfere. If a right of appeal is available, this orderrejecting the writ petition shall not prejudice petitioners'case in any such appeal."13.In State of Maharastra v. Digambar reported in AIR 1995 SC 1991,the Supreme Court, considered a case, where compensation for the acquiredland was claimed belatedly and at Paragraphs 12, 18 and 21, held asfollows:"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 guiltyof 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 equitable reliefunder Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver andthe like. Moreover, how a citizen claiming discretionary reliefunder Article 226 of the Constitution against a State, could berelieved of his obligation to establish his unblameworthyconduct for getting such relief, where the State against whichrelief is sought is a welfare State, is also difficult tocomprehend. Where the relief sought under Article 226 of theConstitution by a person against the welfare State is founded onits alleged illegal or wrongful executive action, the need toexplain laches or undue delay on his part to obtain such relief,should, if anything, be more stringent than in other cases, forthe reason that the State due to laches or undue delay on thepart of the person seeking relief, may not be able to show thatthe executive action complained of was legal or correct for wantof records pertaining 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 State https://hcservices.ecourts.gov.in/hcservices/ 6on 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 relief underArticle 226 of the Constitution on the alleged violation of hislegal 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, be theycitizens 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 the Courtfor grant of such discretionary relief. Therefore, where a HighCourt grants relief to a citizen or any other person underArticle 226 of the Constitution against any person including theState without considering his blame-worthy conduct, such aslaches or undue delay, acquiescence or waiver, the relief sogranted becomes unsustainable even if the relief was granted inrespect of alleged deprivation of his legal right by the State.14. Laches or undue delay, the blame-worthy conduct of a person inapproaching a Court of Equity in England for obtaining discretionaryrelief which disentitled for grant of such relief was explainedsuccinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v.Prosper Armstrong (1874) 5 PC 221) thus :"Now the doctrine of latches in Courts of Equity is not anarbitrary or a technical doctrine. Where it would be practicallyunjust to give a remedy, either because the party has, by hisconduct, done that which might fairly be regarded as equivalentto a waiver of it, or where by his conduct and neglect he has,though perhaps not waiving that remedy, yet put the other partyin a situation, in which it would not be reasonable to place himif the remedy were afterwards to be asserted, in either of thesecases, lapse of time and delay are most material. But in everycase, if an argument against relief, which otherwise would bejust, is founded upon mere delay, that delay of course notamounting to a bar by any statute or limitations, the validityof that defence must be tried upon principles substantiallyequitable. Two circumstances, always important in such cases,are, the length of the delay and the nature of the acts doneduring the interval, which might affect either party and cause abalance of Justice or injustice in taking the one course or theother, so far as it relates to the remedy."21. Therefore, where a High Court in exercise of its powervested 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 and https://hcservices.ecourts.gov.in/hcservices/ 7reasonably in exercise of its sound judicial discretion, but asthat made arbitrarily."15.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. 16.In Jagdish Lal and Ors.,v. State of Haryana and Ors., reportedin (1997) 6 SCC 538 : AIR 1997 SC 2366, this Court reaffirmed the rule ifa person choses to sit over the matter and then woke up after thedecision of the Court, then such person cannot stand to benefit. In thatcase it was observed as follows:"The delay disentitles a party to discretionary reliefunder Article 226 or Article 32 of the Constitution. Theappellants kept sleeping over their rights for long and woke upwhen they had the impetus from Vir Pal Singh Chauhan case. Theappellants' desperate attempt to redo the seniority is notamenable to judicial review at this belated stage."17.In Larsen and Toubro Ltd., v. State of Gujarat reported in 1998(4) SCC 387, the Supreme Court held that a writ petition challenging thenotifications issued under Sections 4 and 6 of the Central Act is liableto be dismissed on the ground of delay and laches, if the challenge isnot made within a reasonable time. 18.In the case of Government of W.B., v. Tarun K.Roy and Ors.,reported in (2004) 1 SCC 347, Their Lordships considered delay as seriousfactor and have not granted relief. It was observed as follows:"The respondents furthermore are not even entitled to anyrelief on the ground of gross delay and laches on their part infiling the writ petition. The first two writ petitions werefiled in the year 1976 wherein the respondents hereinapproached the High Court in 1992. In between 1976 and 1992 notonly two writ petitions had been decided, but one way or theother, even the matter had been considered by this Court inDebdas Kumar. The plea of delay, which Mr. Krishnamani states,should be a ground for denying the relief to the other personssimilarly situated would operate against the respondents.Furthermore, the other employees not being before this Courtalthough they are ventilating their grievances beforeappropriate courts of law, no order should be passed whichwould prejudice their cause. In such a situation, we are notprepared to make any observation only for the purpose of grantof some relief to the respondents to which they are not legallyentitled to so as to deprive others there from who may be foundto be entitled thereto by a court of law."19.In Chairman, U.P. Jal Nigam and another v. Jaswant Singhreported in AIR 2007 SC 924, the Supreme Court, after considering a https://hcservices.ecourts.gov.in/hcservices/ 8catena 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 the partof the incumbent whether other parties are going to beprejudiced if the relief is granted."20.In the case on hand, from the material available on record, itcould be deduced that when the services of the petitioner and others werenot regularised from the date of their initial appointment as RecordClerk, the Tribunal had come to their rescue and consequently, ordershave been issued in G.O.Ms.No. 400, Revenue (E2) Department, dated15.05.1995, regularising the petitioner in the post of Assistant from01.11.984 to 12.11.2002. Subsequently, after relaxation of the requiredrules, the petitioner has also been considered notionally for promotionto the post of Tahsildar and his pay has also been fixed. Everythinghas come to an end in the year 2006. Now after a lapse of 5 years, thepetitioner has again started sending representations stating that he isentitled to pay on par with that of his junior, who came to be promotedmuch earlier than him. 21.The Writ Petition is hit by delay and laches and therefore,dismissed. No costs.vsgSd/-Assistant Registrar/True copy/Sub Assistant RegistrarTo1.The Secretary to the GovernmentRevenue Department St. George Fort, Chennai - 600 0092.The Special Commissioner/Commissioner for Revenue AdministrationChepauk Chennai - 600 0053.The CollectorMadurai District Collectorate, Madurai - 20 +1 cc to the Special Government Pleader, SR.No.27448. +1 cc to Mr.B.Bommayan, Advocate SR.No.27673.W.P.(MD).No.9051 of 2011Dated:11.08.20118P/6CRPB 29/08/2011