U.Sivagurunathan v. The Director of Town Panchayat Kuralagam

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 16/8/2011CORAMTHE HONOURABLE Mr.JUSTICE S.MANIKUMARW.P.(MD)No.9169 of 2011U.Sivagurunathan..Petitioner Vs.The Director of Town PanchayatKuralagamChennai 600 108...RespondentPetition filed under Article 226 of the Constitution of India prayingfor the issuance of a writ of mandamus directing the respondent to considerthe request of the petitioner dated 16/3/2011 in the light of the orderpassed by this Court in W.P.No.14093 of 2007 and W.P.No.27449 of 2005 dated11/6/2008 and 23/2/2006.For petitioner ...Mr.VeerakathiravanFor respondents...Mr.B.Pugalendhi, Special Government Pleader ORDERAt paragraph No.5, of the supporting affidavit, the petitioner hascontended that, he should have been promoted as Junior Assistant, between2003 and 2005, whereas, he has been given promotion to the post of JuniorAssistant only in G.O.Ms.No.63 Municipal Administration and Water SupplyDepartment dated 7/4/2010.2. At paragraph No.6, the petitioner has contended that the DistrictCollector, Thanjavur, vide proceedings in Na.Ka.No.1050/05/TP2 dated11/6/2010, has appointed the petitioner as Bill Collector. But, as per theService Rules, he should have been given promotion in the year 2004 – 2005.But promotion has been given only after five years. Hence, the petitionerhas made a representation to the respondent dated 16/3/2011, to fix hisseniority on the date of eligibility as per the Rules and that the same ispending before the respondent. In the above said circumstances, thepetitioner has sought for a mandamus directing the respondent to considerhis representation dated 16/3/2011, in the light of the order passed by thisCourt in W.P.No.14093 of 2007 and W.P.No.27449 of 2005 dated 11/6/2008 and23/2/2006 respectively.3. The Supreme Court, has time and again, held that, request forpromotion should be made within a reasonable time and inordinate delay orlaches on the part of the Government servant, in approaching the Courtsshould not be entertained. 4. Laches or reasonable time are not defined under any Statute orRules. "Laches" or "Lashes" is an old french word for slackness or negligenceor not doing. In general sense, it means neglect to do what in the law should https://hcservices.ecourts.gov.in/hcservices/ 2have been done for an unreasonable or unexplained length of time. What couldbe the latches in one case might not constitute in another. The latches tonon-suit, an aggrieved person person from challenging the acquisitionproceedings should be inferred from the conduct of the land owner or aninterested person and that there should be a passive inaction for a reasonablelength of time. What is reasonable time has not been explained in any of theenactment. Reasonable time depends upon the facts and circumstances of eachcase. 5. 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 meaning ofreasonable in regard to those circumstances of which the personconcerned is called upon to act reasonably knows or ought toknow as to what was reasonable. It may be unreasonable to givean exact definition of the word “reasonable”. The reason variesin its conclusion according to idiosyncrasy of the individualand the time and circumstances in which he thinks. Thedictionary 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 thecircumstances of the case; a reasonable time underordinary circumstances; as soon as circumstances willpermit; so much time as is necessary under thecircumstances, conveniently to do what the contractrequires should be done; some more protracted spacethan ‘directly’; such length of time as may fairly,and properly, and reasonably be allowed or required,having regard to the nature of the act or duty and tothe attending circumstances; all these convey more orless the same idea.”6. The statement of law has also been summarized in Halsbury's Lawsof England, Para 911 , pg. 395 as follows:"In determining whether there has been suchdelay as to amount to laches, the chief points to beconsidered are:(i) acquiescence on the claimant's part; and (ii). any change of position that has occurredon the defendant's part.Acquiescence in this sense does not meanstanding by while the violation of a right is inprogress, but assent after the violation has beencompleted and the claimant has become aware of it. It isunjust to give the claimant a remedy where, by hisconduct, he has done that which might fairly be regardedas equivalent to a waiver of it; or where by his conduct https://hcservices.ecourts.gov.in/hcservices/ 3and neglect, though not waiving the remedy, he has putthe other party in a position in which it would not bereasonable to place him if the remedy were afterwards tobe asserted. In such cases lapse of time and delay aremost material. Upon these considerations rests thedoctrine of laches."7. 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 the exerciseof its discretion does not ordinarily assist the tardy and theindolent or the acquiescent and the lethargic. If there isinordinate delay on the part of the petitioner in filing a writpetition and such delay is not satisfactorily explained, the HighCourt may decline to intervene and grant relief in the exerciseof its writ jurisdiction. The evolution of this rule of laches ordelay is premised upon a number of factors. The High Court doesnot ordinarily permit a belated resort to the extraordinaryremedy under the writ jurisdiction because it is likely to causeconfusion and public inconvenience and bring in its train newinjustices. The rights of third parties may intervene and if thewrit jurisdiction is exercised on a writ petition filed afterunreasonable delay, it may have the effect of inflicting not onlyhardship and inconvenience but also injustice on third parties.When the writ jurisdiction of the High Court is invoked,unexplained delay coupled with the creation of third party rightsin the meanwhile is an important factor which always weighs theHigh Court in deciding whether or not to exercise suchjurisdiction. We do not think it necessary to burden thisjudgment with reference to various decisions of this Court whereit has been emphasised time and again that where there isinordinate and unexplained delay and third party rights arecreated in the intervening period, the High Court would declineto interfere, even if the State action complained of isunconstitutional or illegal. .........Of course, this rule oflaches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay andcreation of third party rights the High Court may still in theexercise of its discretion interfere and grant relief to thepetitioner. But, such cases where the demand of justice is socompelling that the High Court would be inclined to interfere inspite of delay or creation of third party rights would by theirvery nature be few and far between. Ultimately it would be amatter within the discretion of the court; ex hypothesi everydiscretion must be exercised fairly and justly so as to promotejustice and not to defeat it."(emphasis supplied)8. 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 weresitting on the fence till somebody else took up the matter to the court for https://hcservices.ecourts.gov.in/hcservices/ 4refund 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 but werecontent to be dormant and chose to sit on the fence till somebodyelse's case came to be decided. Their case cannot be consideredon the analogy of one where a law had been declaredunconstitutional and void by a court, so as to enable persons torecover monies paid under the compulsion of a law later sodeclared void. There is also an unexplained, inordinate delay inpreferring the present writ petition which is brought after ayear after the first rejection. As observed by the Court in DurgaPrashad case, the exchange position of this country and thepolicy of the government regarding international trade variesfrom year to year. In these matters it is essential that personswho are aggrieved by orders of the government should approach theHigh Court after exhausting the remedies provided by law, rule ororder with utmost expedition. Therefore, these delays aresufficient to persuade the Court to decline to interfere. If aright of appeal is available, this order rejecting the writpetition shall not prejudice petitioners' case in any suchappeal."9. In State of Maharastra v. Digambar reported in AIR 1995 SC 1991,the Supreme Court, considered a case, where compensation for the acquired landwas claimed belatedly and at Paragraphs 12, 18 and 21, held as 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 Court underarticle 226 of the Constitution even though, he is guilty oflaches or undue delay is difficult to comprehend, when it is wellsettled by decision of this Court that no person, be he a citizenor otherwise, is entitled to obtain the equitable relief underArticle 226 of the Constitution if his conduct is blame-worthybecause of laches, undue delay, acquiescence, waiver and the like.Moreover, how a citizen claiming discretionary relief underArticle 226 of the Constitution against a State, could be relievedof his obligation to establish his unblameworthy conduct forgetting such relief, where the State against which relief issought is a welfare State, is also difficult to comprehend. Wherethe relief sought under Article 226 of the Constitution by aperson against the welfare State is founded on its alleged illegalor wrongful executive action, the need to explain laches or unduedelay on his part to obtain such relief, should, if anything, bemore stringent 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 records pertainingto the action or for the officers who were responsible for suchaction not being available later on. Further, where granting ofrelief is claimed against the State on alleged unwarrantedexecutive action, is bound to result in loss to the publicexchequer of the State or in damage to other public interest, the https://hcservices.ecourts.gov.in/hcservices/ 5High Court before granting such relief is required to satisfyitself that the delay or laches on the part of a citizen or anyother person in approaching for relief under Article 226 of theConstitution on the alleged violation of his legal right, waswholly justified in the facts and circumstances, instead ofignoring the same or leniently considering it. Thus, in our view,persons seeking relief against the State under Article 226 of theConstitution, be they citizens or otherwise, cannot getdiscretionary relief obtainable thereunder unless they fullysatisfy the High Court that the facts and circumstances of thecase clearly justified the laches or undue delay on their part inapproaching the Court for grant of such discretionary relief.Therefore, where a High Court grants relief to a citizen or anyother person under Article 226 of the Constitution against anyperson including 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 relief wasgranted in respect of alleged deprivation of his legal right bythe State.18. Laches or undue delay, the blame-worthy conduct of aperson in approaching a Court of Equity in England for obtainingdiscretionary relief which disentitled for grant of such reliefwas explained succinctly by Sir Barnes Peacock, long ago, inLindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus :"Now the doctrine of latches in Courts of Equityis not an arbitrary or a technical doctrine. Where itwould be practically unjust to give a remedy, eitherbecause the party has, by his conduct, done that whichmight fairly be regarded as equivalent to a waiver of it,or where by his conduct and neglect he has, thoughperhaps not waiving that remedy, yet put the other partyin a situation, in which it would not be reasonable toplace him if the remedy were afterwards to be asserted,in either of these cases, lapse of time and delay aremost material. But in every case, if an argument againstrelief, which otherwise would be just, is founded uponmere delay, that delay of course not amounting to a barby any statute or limitations, the validity of thatdefence must be tried upon principles substantiallyequitable. Two circumstances, always important in suchcases, are, the length of the delay and the nature of theacts done during the interval, which might affect eitherparty and cause a balance of Justice or injustice intaking the one course or the other, so far as it relatesto the remedy."21. Therefore, where a High Court in exercise of its powervested under Article 226 of the Constitution issues a direction,order or writ for granting relief to a person including a citizenwithout considering his disentitlement of such relief due to hisblameworthy conduct of undue delay or laches in claiming the same,such a direction, order or writ becomes unsustainable as that not https://hcservices.ecourts.gov.in/hcservices/ 6made judiciously and reasonably in exercise of its sound judicialdiscretion, but as that made arbitrarily."10. 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, if the partydoes not approach the Court within a reasonable time, which is always aquestion of fact and have the order invalidated or acquiesced or waived, thediscretion of the Court has to be exercised in a reasonable manner. 11. In Jagdish Lal and Ors.,v. State of Haryana and Ors., reported in(1997) 6 SCC 538 : AIR 1997 SC 2366, this Court reaffirmed the rule if aperson choses to sit over the matter and then woke up after the decision ofthe Court, then such person cannot stand to benefit. In that case, it wasobserved as follows:"The delay disentitles a party to discretionaryrelief under Article 226 or Article 32 of theConstitution. The appellants kept sleeping over theirrights for long and woke up when they had the impetusfrom Vir Pal Singh Chauhan case. The appellants'desperate attempt to redo the seniority is not amenableto judicial review at this belated stage."12.In Larsen and Toubro Ltd., v. State of Gujarat reported in1998 (4) SCC 387, the Supreme Court held that a writ petition challenging thenotifications issued under Sections 4 and 6 of the Central Act is liable to bedismissed on the ground of delay and laches, if the challenge is not madewithin a reasonable time. 13. 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 a 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 were filedin the year 1976 wherein the respondents herein approached theHigh Court in 1992. In between 1976 and 1992 not only two writpetitions had been decided, but one way or the other, even thematter had been considered by this Court in Debdas Kumar. Theplea of delay, which Mr. Krishnamani states, should be a groundfor denying the relief to the other persons similarly situatedwould operate against the respondents. Furthermore, the otheremployees not being before this Court although they areventilating their grievances before appropriate courts of law, noorder should be passed which would prejudice their cause. In sucha situation, we are not prepared to make any observation only forthe purpose of grant of some relief to the respondents to whichthey are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."14. In Chairman, U.P. Jal Nigam and another v. Jaswant Singh reportedin AIR 2007 SC 924, the Supreme Court, after considering a catena of decisionson the aspect of delay, at Paragraph 13, held as follows:"13. .......Therefore, whenever it appears that theclaimants lost time or while away and did not rise to the occasion https://hcservices.ecourts.gov.in/hcservices/ 7in time for filing the writ petitions, then in such cases, theCourt should be very slow in granting the relief to the incumbent.Secondly, it has also to be taken into consideration the questionof acquiescence or waiver on the part of the incumbent whetherother parties are going to be prejudiced if the relief isgranted."15. It is now a well settled principle of law that, whileventilating the grievance, for promotion or seniority, one should approachthe competent authority or the Court of law, within a reasonable time. 16. Even as per the averments made in the supporting affidavit, itis the case of the petitioner that, he should have been promoted as JuniorAssistant between 2003 and 2005 and as Bill Collector in the year 2004 –2005. No explanation has been stated in the supporting affidavit, as towhat steps, the petitioner had taken from 2003, till he submitted therepresentation on 16/3/2011. Delay and laches is per se apparent on theface of record. In such circumstances, this Court is not inclined to issueany directions to the respondent to dispose of his representation dated16/3/2011. Delay defeats equity. Notwithstanding the legal position, ifthe Director of Town Panchayat, Chennai still chooses to pass appropriateorders dated 1/4/2011, it is open to him to do so.17. In view of the above, the writ petition is disposed ofaccordingly. No costs. Consequently, the connected MiscellaneousPetition is also dismissed.Sd/-Assistant Registrar (RTI Act)/True Copy/Sub Assistant Registrar ToThe Director of Town PanchayatKuralagam, Chennai 600 108.+1cc to The Special Government Pleader, SR.No.27792mvsakm/5.9.11/7p-3c/W.P.(MD) No.9169 of 201116/8/2011