High Court

Court No. - 5 Case :- WRIT - A No. - 12917 of 2024 Petitioner :- Smt. Shanti Devi Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Transport Lko. And 3 Others Counsel for Petitioner :- Ghaus Beg Counsel for Respondent :- C.S.C.,Ratnesh Chandra Hon'ble Abdul Moin,J. Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of the respondents no. 1 & 2 and Sri Ratnesh Chandra, learned counsel for the respondents no. 3 & 4. Learned counsels appearing on behalf of the contesting parties state that the facts of the instant case have already been set forth in detailed by this Court in the order dated 09.01.2025 which for the sake of convenience is reproduced below:- "1.Heard.

2.Instant writ petition has been filed by a widow of an employee, who was working under the respondent-Corporation who retired in the year 1997 and died in the year 2013.

3.The widow has staked her claim of being paid family pension.

4.A preliminary objection has been raised by the learned counsel for the respondent-Corporation that once the employee himself namely the husband of the petitioner never staked his claim for pension meaning thereby that he was never interested in grant of pension and was satisfied with the retiral dues that were given to him as to whether the petitioner in the capacity of a widow can stake her claim of being paid family pension.

5.Responding to that learned counsel for the petitioner states that in para 4 of the writ petition it has categorically been stated that husband of the petitioner namely Chaman Lal has approached respondent No.4 for payment of pension and he was orally informed by the office of respondent No.4 that a writ petition is pending before the High Court and till its finalization no decision can be taken regarding payment of pension.

6.Reference has also been made upon the letter dated 01.08.2013, a copy of which is Annexure-7 to the petition, that had been sent by Chaman Lal to the respondents claiming pension to contend that the husband of the petitioner was interested in being paid pension and in case pension was not paid to him and now the petitioner is staking her claim for being paid family pension consequently laches would not be attracted where claim for pension would be recurring cause of action.

7.Shri Ratnesh Chandra, learned counsel appearing for the respondent-Corporation prays for and is granted two weeks' time to seek instructions as to whether the husband of the petitioner namely Chaman Lal had ever approached the respondents for payment of pension and as to whether alleged letter dated 01.08.2023 as referred to above has been received in the office of the respondents.

8.List after two weeks as fresh." Today, Sri Ratnesh Chandra, learned counsel for the respondents no. 3 & 4 states on the basis of instructions that the letter dated 01.08.2013 as is alleged to have been sent by the husband of the petitioner namely Sri Chaman Lal was never received in the office. He further states that it is thus the case whereby the petitioner has approached this Court claiming for pension with gross delay and laches on the part of the petitioner and consequently, the writ petition deserves to be dismissed on this ground alone. However, Sri Ratnesh Chandra, learned counsel appearing on behalf of the Corporation fairly states that the husband of the petitioner may be covered by the circular dated 14.11.2013. Considering the order of this Court dated 09.01.2025 wherein laches on the part of the petitioner had clearly been indicated in seeking the benefit of the circular dated 14.11.2013, a copy of which is annexure 14 to the writ petition which provided for grant of pension to such employees like the husband of the petitioner. The circular has been issued on 14.11.2013 while the husband of the petitioner died on 24.11.2013 and consequently, it is thus apparent that even the husband of the petitioner was not interested in the pension in terms of the aforesaid circular. However, the Court may not lose sight of the fact that although there are gross laches on the part of the petitioner in approaching this Court but whether the said laches on the part of the petitioner would restrain this Court from exercising jurisdiction as vested under Article 226 of the Constitution of India which power is being exercised in extraordinary circumstances. In this case, it would be apt to refer to the judgment of the Apex Court in the case of Ram Autar Singh Yadav Vs. State of U.P and Ors passed in passed in Civil Appeal No. 13806 of 2024 decided on 04.12.2024 wherein the Apex Court has held as under:- "21. Taking a cue from the above, we can safely conclude that the foremost factor based whereon relief could be declined in a case of unexplained delay and laches is the accrual of a parallel right in favour of a third party. The other vital factor to be borne in mind is whether grant of relief in a belated claim is likely to cause confusion and public inconvenience like unsettling matters which have long settled. Relief could also be denied if by reason of the delay, the official respondents are hopelessly inconvenienced in defending their action for lack of the relevant records and to establish their defence to the full satisfaction of the court.

22. In the present case, neither is there accrual of any parallel right of a third party nor could grant of relief cause confusion and public inconvenience. There has also been no occasion for the State authorities to claim that they are in any manner handicapped to defend their action. On the contrary, this is a case where the appellant sought to explain the belated approach by referring to his repeated unyielding persuasions, which the High Court brushed aside mechanically, without appreciating that the appellant had invoked its writ jurisdiction for enforcement of his Fundamental Rights under Articles 14 and 21 of the Constitution. When a litigant approaches a high court invoking its high prerogative writ jurisdiction with a petition under Article 226 of the Constitution alleging that the impugned State action is in breach of his Fundamental Right and claims that the breach be bridged by issuing appropriate writ/order/direction as distinguished from a claim for enforcement of a statutory right, it partakes the character of a duty on the part of such high court to enforce the right breached as the guardian of the Constitution. Law is well-settled that there is no loss of a Fundamental Right for non-exercise thereof and also that there cannot be waiver of a Fundamental Right. Hence, no argument can commend acceptance that a litigant seeking enforcement of his Fundamental Right should be declined relief in all cases of a belated approach. Notwithstanding delay, which might not have been explained to the full satisfaction of a high court, we hold that in cases where a high court finds that facts, as they have been presented, are not seriously disputed, no further investigation into facts is required to be made, the relief claimed in the petition was otherwise due to the writ petitioner and the same would have followed as a matter of course and been granted had he approached the high court without delay, it would be iniquitous and inappropriate to deny relief for no better reason than that the relief has been belatedly claimed." From the aforesaid judgment of Ram Autar Singh Yadav (supra) it emerges that the Apex Court has laid down the circumstances which are to be seen by a writ Court in order to consider the laches on the part of a litigant in approaching a Constitutional Court. The factors which have been laid down by the Apex Court are (a) whether there has been any accrual of a parallel right in favour of a third party (b) whether grant of relief in a belated claim is likely to cause confusion and public inconvenience like unsettling matters which have long been settled (c) whether the official respondents are hopelessly inconvenienced in defending their action for lack of the relevant records and to establish their defence to the full satisfaction of the Court. When the facts of the instant case are tested at the touchstone of law laid down by the Apex Court in the case of Ram Autar Singh Yadav (supra) it clearly emerges that there has been no accrual of parallel right in favour of third party and grant of a benefit may also not cause confusion and public inconvenience like unsettling matters or for that matter the respondents would be hopelessly inconvenienced in defending their action for lack of the relevant records. The Apex Court has also held that notwithstanding delay, in cases where the High Court finds that facts as have been presented are not seriously disputed or no further investigation into facts is required and the relief claimed in the petition is otherwise due to the petitioner and the same would have been followed as a matter of course and had been granted had he approached the High Court without delay consequently, considering the circular dated 14.11.2013 which provides for grant of pension to all employees who are appointed prior to 28.10.2007 and confirmed prior to the said date and in the facts of the instant case where the husband of the petitioner had been appointed prior to 28.10.2007 and had also been confirmed prior to the said date as such, it is apparent that despite the laches on the part of the petitioner, this Court can exercise jurisdiction under Article 226 of the Constitution of India and the laches would not stand in way to decide the writ petition on merits. Keeping in view the aforesaid discussion, the Court is not inclined to dismiss the writ petition on the ground of laches and delay. The matter is disposed of with the direction to the respondent no. 3 i.e the Managing Director of the Corporation to consider the claim of the petitioner for family pension in terms of the circular dated 14.11.2013. Let such consideration be made in accordance with law and a reasoned & speaking order be passed within a period of two months from the date of receipt of a certified copy of this order. Needless to mention that the consideration of the claim of the petitioner for pension would be made strictly in accordance with the circular dated 14.11.2013 provided that the petitioner is eligible for the same. Order Date :- 21.2.2025/Pachhere/-

Court No. - 5 Case :- WRIT - A No. - 12917 of 2024 Petitioner :- Smt. Shanti Devi Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Transport Lko. And 3 Others Counsel for Petitioner :- Ghaus Beg Counsel for Respondent :- C.S.C.,Ratnesh Chandra Hon'ble Abdul Moin,J. Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of the respondents no. 1 & 2 and Sri Ratnesh Chandra, learned counsel for the respondents no. 3 & 4. Learned counsels appearing on behalf of the contesting parties state that the facts of the instant case have already been set forth in detailed by this Court in the order dated 09.01.2025 which for the sake of convenience is reproduced below:- "1.Heard.

2.Instant writ petition has been filed by a widow of an employee, who was working under the respondent-Corporation who retired in the year 1997 and died in the year 2013.

3.The widow has staked her claim of being paid family pension.

4.A preliminary objection has been raised by the learned counsel for the respondent-Corporation that once the employee himself namely the husband of the petitioner never staked his claim for pension meaning thereby that he was never interested in grant of pension and was satisfied with the retiral dues that were given to him as to whether the petitioner in the capacity of a widow can stake her claim of being paid family pension.

5.Responding to that learned counsel for the petitioner states that in para 4 of the writ petition it has categorically been stated that husband of the petitioner namely Chaman Lal has approached respondent No.4 for payment of pension and he was orally informed by the office of respondent No.4 that a writ petition is pending before the High Court and till its finalization no decision can be taken regarding payment of pension.

6.Reference has also been made upon the letter dated 01.08.2013, a copy of which is Annexure-7 to the petition, that had been sent by Chaman Lal to the respondents claiming pension to contend that the husband of the petitioner was interested in being paid pension and in case pension was not paid to him and now the petitioner is staking her claim for being paid family pension consequently laches would not be attracted where claim for pension would be recurring cause of action.

7.Shri Ratnesh Chandra, learned counsel appearing for the respondent-Corporation prays for and is granted two weeks' time to seek instructions as to whether the husband of the petitioner namely Chaman Lal had ever approached the respondents for payment of pension and as to whether alleged letter dated 01.08.2023 as referred to above has been received in the office of the respondents.

8.List after two weeks as fresh." Today, Sri Ratnesh Chandra, learned counsel for the respondents no. 3 & 4 states on the basis of instructions that the letter dated 01.08.2013 as is alleged to have been sent by the husband of the petitioner namely Sri Chaman Lal was never received in the office. He further states that it is thus the case whereby the petitioner has approached this Court claiming for pension with gross delay and laches on the part of the petitioner and consequently, the writ petition deserves to be dismissed on this ground alone. However, Sri Ratnesh Chandra, learned counsel appearing on behalf of the Corporation fairly states that the husband of the petitioner may be covered by the circular dated 14.11.2013. Considering the order of this Court dated 09.01.2025 wherein laches on the part of the petitioner had clearly been indicated in seeking the benefit of the circular dated 14.11.2013, a copy of which is annexure 14 to the writ petition which provided for grant of pension to such employees like the husband of the petitioner. The circular has been issued on 14.11.2013 while the husband of the petitioner died on 24.11.2013 and consequently, it is thus apparent that even the husband of the petitioner was not interested in the pension in terms of the aforesaid circular. However, the Court may not lose sight of the fact that although there are gross laches on the part of the petitioner in approaching this Court but whether the said laches on the part of the petitioner would restrain this Court from exercising jurisdiction as vested under Article 226 of the Constitution of India which power is being exercised in extraordinary circumstances. In this case, it would be apt to refer to the judgment of the Apex Court in the case of Ram Autar Singh Yadav Vs. State of U.P and Ors passed in passed in Civil Appeal No. 13806 of 2024 decided on 04.12.2024 wherein the Apex Court has held as under:- "21. Taking a cue from the above, we can safely conclude that the foremost factor based whereon relief could be declined in a case of unexplained delay and laches is the accrual of a parallel right in favour of a third party. The other vital factor to be borne in mind is whether grant of relief in a belated claim is likely to cause confusion and public inconvenience like unsettling matters which have long settled. Relief could also be denied if by reason of the delay, the official respondents are hopelessly inconvenienced in defending their action for lack of the relevant records and to establish their defence to the full satisfaction of the court.

22. In the present case, neither is there accrual of any parallel right of a third party nor could grant of relief cause confusion and public inconvenience. There has also been no occasion for the State authorities to claim that they are in any manner handicapped to defend their action. On the contrary, this is a case where the appellant sought to explain the belated approach by referring to his repeated unyielding persuasions, which the High Court brushed aside mechanically, without appreciating that the appellant had invoked its writ jurisdiction for enforcement of his Fundamental Rights under Articles 14 and 21 of the Constitution. When a litigant approaches a high court invoking its high prerogative writ jurisdiction with a petition under Article 226 of the Constitution alleging that the impugned State action is in breach of his Fundamental Right and claims that the breach be bridged by issuing appropriate writ/order/direction as distinguished from a claim for enforcement of a statutory right, it partakes the character of a duty on the part of such high court to enforce the right breached as the guardian of the Constitution. Law is well-settled that there is no loss of a Fundamental Right for non-exercise thereof and also that there cannot be waiver of a Fundamental Right. Hence, no argument can commend acceptance that a litigant seeking enforcement of his Fundamental Right should be declined relief in all cases of a belated approach. Notwithstanding delay, which might not have been explained to the full satisfaction of a high court, we hold that in cases where a high court finds that facts, as they have been presented, are not seriously disputed, no further investigation into facts is required to be made, the relief claimed in the petition was otherwise due to the writ petitioner and the same would have followed as a matter of course and been granted had he approached the high court without delay, it would be iniquitous and inappropriate to deny relief for no better reason than that the relief has been belatedly claimed." From the aforesaid judgment of Ram Autar Singh Yadav (supra) it emerges that the Apex Court has laid down the circumstances which are to be seen by a writ Court in order to consider the laches on the part of a litigant in approaching a Constitutional Court. The factors which have been laid down by the Apex Court are (a) whether there has been any accrual of a parallel right in favour of a third party (b) whether grant of relief in a belated claim is likely to cause confusion and public inconvenience like unsettling matters which have long been settled (c) whether the official respondents are hopelessly inconvenienced in defending their action for lack of the relevant records and to establish their defence to the full satisfaction of the Court. When the facts of the instant case are tested at the touchstone of law laid down by the Apex Court in the case of Ram Autar Singh Yadav (supra) it clearly emerges that there has been no accrual of parallel right in favour of third party and grant of a benefit may also not cause confusion and public inconvenience like unsettling matters or for that matter the respondents would be hopelessly inconvenienced in defending their action for lack of the relevant records. The Apex Court has also held that notwithstanding delay, in cases where the High Court finds that facts as have been presented are not seriously disputed or no further investigation into facts is required and the relief claimed in the petition is otherwise due to the petitioner and the same would have been followed as a matter of course and had been granted had he approached the High Court without delay consequently, considering the circular dated 14.11.2013 which provides for grant of pension to all employees who are appointed prior to 28.10.2007 and confirmed prior to the said date and in the facts of the instant case where the husband of the petitioner had been appointed prior to 28.10.2007 and had also been confirmed prior to the said date as such, it is apparent that despite the laches on the part of the petitioner, this Court can exercise jurisdiction under Article 226 of the Constitution of India and the laches would not stand in way to decide the writ petition on merits. Keeping in view the aforesaid discussion, the Court is not inclined to dismiss the writ petition on the ground of laches and delay. The matter is disposed of with the direction to the respondent no. 3 i.e the Managing Director of the Corporation to consider the claim of the petitioner for family pension in terms of the circular dated 14.11.2013. Let such consideration be made in accordance with law and a reasoned & speaking order be passed within a period of two months from the date of receipt of a certified copy of this order. Needless to mention that the consideration of the claim of the petitioner for pension would be made strictly in accordance with the circular dated 14.11.2013 provided that the petitioner is eligible for the same. Order Date :- 21.2.2025/Pachhere/-