WP-5174-2016 (HARISHANKAR TIWARI Vs THE STATE OF MADHYA PRADESH) 11-05-2016 Shri [ENTITY], learned counsel for the petitioners. Shri [ENTITY], learned G.A. for the State. Heard. This petition has been filed by the petitioners being aggrieved by order dated 09.12.2013 by which the petitioners' representation seeking appointment on the post of [ENTITY] in Panna District, has been rejected. The petitioners submit that a similar petition registered as [CASE NUMBER] have been disposed of by this court on 09.02.2015 directing the respondents/authorities to reconsider and decide the representation of the petitioners in the light of the order passed by a Division Bench of this court in [CASE NUMBER]. From a perusal of the petition it is evident that initially the petitioners along with others had filed [CASE NUMBER] and other petitions which were disposed of by this court with a direction to the respondents/authorities to consider the representation of the petitioners therein, in the light of the order passed in [CASE NUMBER]. It is evident from a perusal of the impugned order dated 09.12.2013 (Annexure P/1) that the representations of the petitioner in [CASE NUMBER] have been considered and rejected by the authorities on the ground that there were illegalities in the selection and therefore no order in their favour could be passed. It is also apparent from the statement made by the petitioners in the writ petition that certain other petitions were also filed before this court against the aforesaid order dated 09.12.2013 which have been disposed of by this court directing the authorities concerned to reconsider and decide the representation of the petitioners in the light of the order passed by the Division Bench of this court in [CASE NUMBER], as directed earlier. The learned counsel for the petitioners submits that keeping the concept of parity in mind, the present petition may also be disposed of with similar directions to the authorities concerned to re-consider the representation of the petitioners in the light of the order passed by the Division Bench of this court in [CASE NUMBER]. Before I consider the prayer of the learned counsel for the petitioners for disposing of the petition in similar terms, I think it proper and necessary to consider the few facts to ensure that the orders passed by this court are not misinterpreted and misused. The selection process in the instant case in respect of which the representation has been filed by the petitioners, was actually initiated by the authorities in the year 1995 which became subject matter of writ petition before this court and the learned Single Judge of this court allowed the petition quashing the entire selection on the ground that it suffered from several illegalities and irregularities. The order passed by the learned single judge was assailed in [CASE NUMBER] which was ultimately disposed of with a direction to appoint 11 persons specifically mentioned and stated in paragraph 9 of the order passed in the aforesaid LPA as [ENTITY] and not [ENTITY] Grade-III and while doing so the order of the learned single judge was set aside and the appeal was disposed of. From a perusal of the order passed in the [CASE NUMBER] which has been placed before this court, it is clear that the selection proceedings initiated in the year 1995 stood finally concluded and came to an end. It is also an undisputed fact that the petitioners and similarly situated other persons who have filed the recent petition, did not assail the selection process and appointment made by the respondents/authorities in the year 1995 nor were they party before the Division Bench in [CASE NUMBER] which was decided on 23.10.2003. Apparently, the petitioners and others have filed a representation before the authorities seeking appointment as [ENTITY] in respect of the selection proceedings that were initiated in the year 1995 and stood concluded by the order of the Division Bench in [CASE NUMBER] on 23.10.2003 after a long lapse of nearly 15-20 years and therefore, there is an apparent unexplained delay and laches on the part of the petitioners in approaching the respondents and filing the petition. However, the representation filed by the petitioners had been entertained by the authorities, therefore, this court disposed of [CASE NUMBER] in the first round at the initial stage with a direction to the authorities to decide the representation keeping in mind the order passed by the Division Bench in [CASE NUMBER]. The aforesaid observation was made by this court in [CASE NUMBER] with a view to bring to the notice of the authorities that the matter stood finally concluded by an order of the Division Bench of this court in [CASE NUMBER] way back in the year 2003 itself and in the light thereof to consider as to whether or not any relief could be granted to the petitioners after a long lapse of time. It is also settled law that as this petition suffers from tremendous unexplained delay and laches on the part of the petitioners as the petitioners had failed to approach this court in the year 1995 itself against their non-selection or immediately thereafter and therefore, they cannot claim parity with the petitioners who had approached this court immediately and vigilantly in the year 1995 in view of the law laid down by the Supreme Court in the cases of [PRECEDENT], The [PRECEDENT], , [PRECEDENT], and [PRECEDENT] The Supreme Court in the case of [PRECEDENT], has held that petitions that are filed after considerable delay and latches espousing dead cases cannot be reopened by issuing directions by the High Court for consideration of the representation in the following terms:- 14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill- effects of such directions have been considered by this Court in [PRECEDENT], para 9) - 9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realise the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex- employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. 15. When a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. 16. A court or tribunal, before directing consideration of a claim or representation should examine whether the claim or representation with reference to a live issue or whether it is with reference to a dead or stale issue. If it is with reference to a dead or stale issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct consideration without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect. The Supreme Court in a series of judgments has held that persons who sit back on their rights and ultimately file writ petitions only after some other similarly placed employees, who are vigilant, have approached the Courts and have obtained favourable orders, are not entitled to claim similar relief on account of delay and latches and cannot claim parity in relief on this count. The law in this respect has been discussed and summarized in detail in the judgment of the Supreme Court in the case of [PRECEDENT] in the following terms:- 5. So far as the principal issue is concerned, that has been settled by this Court. Therefore, there is no quarrel over the legal proposition. But the only question is grant of relief to such other persons who were not vigilant and did not wake up to challenge their retirement and accepted the same but filed writ petitions after the judgment of this Court in [PRECEDENT] .
Whether they are entitled to same relief or not? Therefore, a serious question that arises for consideration is whether the employees who did not wake up to challenge their retirement and accepted the same, collected their post-retirement benefits, can such persons be given the relief in the light of the subsequent decision delivered by this Court?
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7. Learned Senior Counsel for the appellants has invited our attention to various decisions to impress upon that persons who are guilty of such laches and acquiesced with the situation should not be granted any relief because it is going to cost the Nigam a heavy financial burden to the tune of Rs.17,80,43,108. Therefore, relief should be confined to those persons who were continuing in service and filed their writ petitions in time but not to all and sundry who woke up to file the writ petitions much after their retirement. In this connection, our attention was invited to a decision of this Court in [PRECEDENT] wherein their Lordships observed that those people who were sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, their Lordships held as follows : (SCC pp. 356-57) Petitioners are reagitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody elses case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after almost a year after the first rejection. As observed by the Court in [PRECEDENT], the exchange position of this country and the policy of the Government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners case in any such appeal.
8. Our attention was also invited to a decision of this Court in [PRECEDENT]. In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached this Court and this Court after considering the matter observed as under: ([CASE NUMBER]) Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in [SECTION], explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub- sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay.
9. Similarly in [PRECEDENT] this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows:
(SCC p.542) The delay disentitles a party to discretionary relief under [SECTION] or [SECTION] of the [ACT]. The appellants kept sleeping over their rights for long and woke up when they had the impetus from [PRECEDENT]. The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.
10. In Union of India v. C.K. [ENTITY] (1997) 3 SCC 395 : 1997 SCC (L&S) 821 it was observed as follows: (SCC p. 398, para 9) 9. We, however, clarify that in view of our finding that the judgment of the Tribunal of 1986 decided on 17-3-1987 gives relief only to [ENTITY], the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. [ENTITY] (since retired) is seeking benefit of [ENTITY] case8. In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to [ENTITY] and nobody else, even [ENTITY] is not entitled to any relief.
11. In [PRECEDENT] their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows:
(SCC pp. 359-60, para 34) 34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in [PRECEDENT] . The plea of delay, which Mr [ENTITY] states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.
12. The statement of law has also been summarised in Halsburys 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 claimants part; and
(ii) any change of position that has occurred on the defendants part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after 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. It is also pertinent to observe that as the matter had been given quietus and had been finally adjudicated by the Division Bench of this court in [CASE NUMBER] decided on 23.10.2003, therefore, this court in [CASE NUMBER] and other connected matters has disposed of the petitions with a direction to the respondents/authorities to take a decision on the representation of the petitioners keeping in mind the fact that the matter had already been finally decided and stood closed by the order passed in [CASE NUMBER] and it was in that context that this court had disposed of the petition directing the respondents/authorities to decide the representation. This court had not directed or issued any positive direction to the respondents/authorities to reopen the selection process that stood concluded and finalized in the year 2003 and grant appointment to the petitioners. However, as it is stated by the learned counsel for the petitioners that similar petitions being [CASE NUMBER] have been disposed of with a direction to the respondents/authorities to reconsider the matter, keeping the concept of parity in mind the present petition is also disposed of with a similar direction to the respondents/authorities to reconsider the case of the petitioners keeping the order passed in [CASE NUMBER] in mind, however, it is made clear that the authorities while reconsidering the matter shall also take into consideration the law laid down by the Supreme Court in the aforementioned cases and take a decision as to whether the authorities can reopen the stale and dead cases where selection has already been finalized and concluded long back and as to whether the selection process initiated in the year 1995 is still alive and can be acted upon or reopened after such a long time.
With the aforesaid observations keeping the concept of parity in mind the writ petition is disposed of with a direction to the authorities to reconsider the matter keeping in mind the directions issued by this court in the preceding paragraphs. The registry is directed to send a copy of the order passed today to all the respondents immediately for necessary information.
C.C. as per rules.
([ENTITY] JHA) JUDGE