1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9953 of 2011 T.Alagu : Petitioner Vs. 1.The Principal Secretary to Government, Labour & Employment Department, Secretariat, Chennai-9. 2.The Director of Employment and Training, Guindy, Chennai-32. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to G.O.Ms.No.72, dated 16.04.2010 of the Labour and Employment (P1) Department and quash the same as illegal and consequently, direct the respondents to promote the petitioner as Principal/Vice Principal/Assistant Director with service and monetary benefit with effect from 21.04.2010 the date on which the last person promoted for the year 2007-2008 within a time frame. For Petitioner : Mr.S.Ponraj For Respondents : Mr.S.Chandrasekar Government Advocate ORDER Though the petitioner has challenged G.O.Ms.No.72, Labour and Employment (P1) Department, dated 16.04.2010, contending inter alia that panels, as per Rule 4 of the Tamil Nadu State and Subordinate Service Rules, have not been drawn periodically, the petitioner has not chosen to implead anyone of 15 Training Officers temporarily promoted as Principal/Vice Principal/Assistant Director of Training. The Writ Petition is liable to be dismissed for non-joinder of necessary and proper parties. Reference can be made to the following decisions: (i) In Ranbir Singh, HFS-II v. State of Haryana and Anr. reported in 1996(1) SCR 157, the dismissal of a writ petition, challenging the inter se seniority, without impleading the other persons was confirmed by the Apex Court. (ii) In Baskaran v. The Commissioner of College Education and 2 Ors. reported in 1996 (I) MLJ 32, a Division Bench of this Court following the judgment of Prabodh Verma's case [1985(1) SCR 216], held that the remedy under Article 226 of Constitution of India is equitable and discretionary and the persons, who would be vitally affected by the decision, are necessary parties. The Court should dismiss the writ petition, if necessary parties are not impleaded in the writ petition. (iii) In yet another decision in Ramarao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors. reported in 2004 https://hcservices.ecourts.gov.in/hcservices/ 2 (I) LLJ 1061SC, the Apex Court reiterated the legal position and held that ".... An order against the person without impleading him as a party and without giving an opportunity of hearing must be held to be bad in law. The appellants herein, keeping in view of the fact that by reason of the impugned direction, the orders of promotion effected in their favour had been directed to be withdrawn, indisputably, were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon. In the absence of the 'promotees' as parties, therefore, it was not permissible for the High Court to issue the directions by reason of the impugned judgment." 2. In the case on hand, the impugned Government Order in G.O.(Ms) No.72, Labour and Employment (P1) Department, dated 16.04.2010, has been issued under Rule 10(a)(i) of the Tamil Nadu State and Subordinate Service Rules, which states that where it is necessary in the public interest owing to an emergency which has been arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with the rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualifications prescribed for the post otherwise than in accordance with the said rules. The adhoc promotion given to the persons named in G.O.(Ms)No.72, Labour and Employment (P1) Department, dated 16.04.2010, has been issued, while he was in service. The petitioner has attained the age of superannuation in the month of June 2011. 3. Courts have consistently held that if there is any infringement of a legal or statutory right, the aggrieved person should have approached the Court of law, within the reasonable time and in the case on hand, after one year and 2 months from the date of retirement, the petitioner has come forward to question the correctness of the impugned order, by which, promotions were granted to 15 Training Officers. In this regard, it is worthwhile to refer to a judgment of the Hon'ble Apex Court in P.S.Sadasivaswamy v. State of Tamil Nadu reported in AIR 1974 SC 2271, wherein the Apex Court held as follows;- "....... A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner’s petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant’s petition as well as the appeal." https://hcservices.ecourts.gov.in/hcservices/ 3 4. Laches or reasonable time are not defined under any Statute or Rules. "laches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the laches in one case might not constitute in another. The laches to non-suit, an aggrieved person person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person 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. Reasonable time depends upon the facts and circumstances of each case. 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 of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word “reasonable”. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the “reasonable time” is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar’s The Law Lexicon it is defined to mean: “A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than ‘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 to the attending circumstances; all these convey more or less the same idea.” 6. 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 to the petitioner the discretionary extraordinary remedy of mandamus, certiorari or any other relief. 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 High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the https://hcservices.ecourts.gov.in/hcservices/ 4 High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship 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 rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. .........Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it." (emphasis supplied) 8. In State of Maharastra v. Digambar reported in AIR 1995 SC 1991, the Supreme Court, considered a case, where compensation for the acquired land was claimed belatedly and at Paragraphs 12, 18 and 21, held as follows: "12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged https://hcservices.ecourts.gov.in/hcservices/ 5 illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame- worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 18. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus : "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, https://hcservices.ecourts.gov.in/hcservices/ 6 which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." 21. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily." 9. 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 party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. 10. In Chairman, U.P. Jal Nigam and another v. Jaswant Singh reported in AIR 2007 SC 924, the Supreme Court, after considering a catena of decisions on the aspect of delay, at Paragraph 13, held as follows: "13. .......Therefore, whenever it appears that the claimants lost time or while 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." 11. On grounds of delay and laches and non-joinder of necessary parties, this Court is not inclined to entertain the Writ Petition. Hence, the Writ Petition is dismissed. No costs. Sd/- Assistant Registrar (CO) /True copy/ Sub Assistant Registrar(C.S) To 1.The Principal Secretary to Government, Labour & Employment Department, Secretariat, Chennai-9. 2.The Director of Employment and Training, Guindy, Chennai-32. +1. CC to Mr.S.Ponraj, Advocate, SR.No.30282 SML Order made in W.P.(MD).No.9953 of 2011 Dated:- 05.09.2011 TR : 15.09.2011: 6p/4c https://hcservices.ecourts.gov.in/hcservices/