Kamal Kishore v. HPSEB Ltd. & Ors.

No. 3457 of 2022 instituted by the petitioner was disposed of on 02.06.2022 with direction to the respondents to decide petitioner’s representation. The representation was rejected by the respondents on 03.08.2022. This led the petitioner to institute present writ petition. 3 I have heard learned counsel for the parties and considered the case file.

#4. Consideration 4(i). Learned counsel for the petitioner’s main plank for claiming the relief is the decision in Bhupinder Singh’s case. Bhupinder Singh was appointed by respondent-Board on compassionate grounds as Clerk-cum- Meter Reader on daily wage basis on 11.12.2006. He felt - 5 - aggrieved against his compassionate employment, on daily wages basis. He immediately took recourse to the law and filed Original Application No.213 of 2007 before the erstwhile Himachal Pradesh Administrate Tribunal seeking compassionate appointment on regular basis from the day one. The Original Application was decided by this Court as CWP(T) No. 1467 of 2008 on 24.06.2011. This decision, as observed earlier, has been affirmed in LPA No. 515 of 2011 and has been maintained even in the SLP preferred by the respondent-Board. Insofar as the petitioner is concerned, he had accepted his compassionate employment on daily wage basis as offered to him by the respondent-Board on 11.12.2006. He did not lodge any protest against his daily waged employment on compassionate grounds. Respondents regularized services of the petitioner as Clerk on 19.11.2014. This order was also accepted by the petitioner. Petitioner did not raise any demur or protest either against his compassionate employment on daily wage basis in the year 2006 or his regularization in the year 2014. He continued to discharge his duties as such. It is an admitted position that petitioner was later promoted as - 6 - Senior Assistant on 14.09.2020. He accepted this office order also. Petitioner has not explained the delay and laches in seeking the relief. Just because relief was granted to an employee, who remained vigilant and took legal recourse immediately when cause of action presented itself, would not mean that in every other case similar benefit is to be granted to those who had accepted what was offered to them and continued to accept further benefits on that basis for years together. Such persons by their act and conduct are estopped from changing their decision years later. Petitioner is one such fence-sitter. In this regard, it would also be pertinent to refer to Surinder Kumar Vs. State of H.P. & Others2. Some of the points framed therein for adjudication, which are relevant for decision of present petition, read as under:- “Points No.(iv): Whether the applicant can claim appointment on compassionate ground against a higher cadre, once he had been appointed in the lower cadre? Point No.(v): In case a person is appointed on contract basis, whether he is within his rights to seek appointment on regular basis? Point No.(vi): In a given set of cases, in one case the appointment on compassionate ground has been offered against a Class-III post and in other case, the 2 CWP No. 9094/2013 with connected matters decided on 06.10.2015 - 7 - appointment has been offered to a Class-IV post, whether it amounts to discrimination?” While deciding the above points, it was inter- alia held as under by the Court:- “76. The discretion offer appointment compassionate ground vested with respondents/Authorities and it is for the said Authorities to see whether a person is to be appointed against a Class-IV or Class-III post or on daily wage basis and that discretion cannot be questioned on the ground of discrimination, and that too, when a person has accepted the offer of appointment and joined without any demur and enjoyed the benefits. However, there is also no quarrel about the proposition that the Authority, who is vested the discretion of making appointment on compassionate ground, is expected to exercise the discretion vested in it judiciously and without being influenced, strictly in accordance with the provisions envisaged in the Policy, so that the avowed object sought to be achieved by the State, by framing such a policy, is achieved.

#77. The sum and substance of the above discussion is that the incumbents, who have been appointed on a particular post and have joined to the said post without expressing any reluctance or protest, such incumbents are precluded from claiming that they should either be appointed to a higher post or should have been given appointment on regular basis, instead of employment on contract basis, or - 8 - have been discriminated viz. a viz. similarly paced persons.” The above observations are applicable to the facts of instant case. Petitioner had accepted the given offer of compassionate appointment and joined as Clerk on daily wage basis on 11.12.2006 without any demur and enjoyed the benefits over period of more than ten years. His services were regularized on 19.11.2014. He continued as such. Petitioner was also promoted to the post of Sr. Assistant on

14.09.2020. Sixteen years after accepting his employment on compassionate grounds as a Meter Reader/Clerk on daily wage basis, he is precluded from claiming that he should have been given appointment on regular basis instead of daily wage wages. 4(ii) Learned counsel for the petitioner has placed reliance upon State of Uttar Pradesh and Others Vs. Arvind Kumar Srivastava and Others3 to contend that decision in Bhupinder Singh’s case should also be applied to the case of the petitioner as he is similarly situated. The legal principles summed up in the aforesaid decision are as under:- 3 (2015)1 SCC 347 - 9 - “22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.

22.1 Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached - 10 - the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” In the aforesaid decision, it has been laid down that normal Rule is that when a particular set of employees is given relief by the Courts all other identically situated persons need to be treated alike by extending that benefit or else it would amount to violation of Article 14 of the constitution of India. However, at the same time it has also been held that this principle is subject to well recognized exceptions in form of laches, delays as well as acquiescence. Those persons who do not challenge the wrong action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts - 11 - who had approached the court earlier in the time succeeded in their efforts, then the employees cannot claim that the benefit of the judgment rendered in the case of the similarly situated persons be extended to them. They would be treated fence-sitters and laches and delays, and/or acquiescence would be a valid ground to dismiss their claims. In Bichitrananda Behera Versus State of Orissa and others4, Hon’ble Supreme Court highlighted the significance of the doctrines of delay & laches and acquiescence in service-related disputes. Hon’ble Court observed that the claimant therein had delayed pursuing his for over 12 years’ despite being aware of the appointment of another person to the same post of Physical Education Trainer (PET). This prolonged inaction was held to amount to acquiescence, which effectively bars the claim because it implies consent through silence or failure to act. Hon’ble Apex Court explained that while laches refers to an unreasonable delay without active consent, both delay and laches serve the important purpose of preventing stale claims that disrupt settled rights and administrative decisions. In 4 Civil Appeal No.6664 of 2023 (@ Special Leave Petition (Civil) No.16238 of 2017), decided on 11.10.2023 . 2023 SCC On Line SC 1307 - 12 - service matters, these doctrines were held to play crucial roles as they protect the stability and finality of administrative decisions. Relevant portion of the judgment reads 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 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 - 13 - consequence, the High Courts will restrict 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)…………….. 21-23. …………….. Acquiescence

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

#25. 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, 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. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis.” (C) Chairman, State Bank of India v M J James, (2022) 2 SCC 301:

#36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of - 14 - days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non- existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case. Xxx

#38. In Ram Chand v. Union of India [Ram Chand v. 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 - 15 - 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. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 1213). “12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows: ‘In determining whether there has been such delay as to amount 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 the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after - 16 - the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.’

#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 while 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 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 - 17 - the rescue of such persons when they themselves are guilty of waiver and acquiescence?”

#39. 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 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.

#40. 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, but laches unlike acquiescence imports - 18 - 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 On Line 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.” In the instant case, petitioner has allowed the facts to settle down over sixteen years. Not a single protest was lodged by him that he was to be employed on compassionate grounds on regular basis and not on daily wages. He accepted his compassionate employment on daily wage basis on 11.12.2006. He did not raise any protest in this regard at any point of time. He accepted regularization of his daily waged services on 19.11.2014. He was promoted as Senior Assistant on 14.09.2020. Now he cannot be heard to complain that he was required to be employed on compassionate grounds on regular basis on 11.12.2006. - 19 - Relief prayed for by him is not only hit by delay & laches but also by his act & conduct throughout his service tenure. He is debarred from seeking the claimed relief by the doctrine of estoppel & acquiescence. Even third party rights will be affected at this stage by granting the relief prayed for by the petitioner. Petitioner being a fence-sitter, cannot seek parity with Sh. Bhupinder Singh, who had been vigilant and had taken recourse to law on the first opportunity presented by the cause of action. In view of above, the relief claimed by the petitioner cannot be granted to him at this stage. The writ petition, therefore, fails and is accordingly dismissed. Pending miscellaneous application(s), if any, also to stand disposed of. June 16, 2025 R.Atal Jyotsna Rewal Dua Judge