!13r IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) WRIT PETITION (S) NO.^V^'Z-^2010 PETITIONER ^lfe- ^. '%^.-"°" ^s^ '\"':'^>" ^^ '»,'-• ^'^:-" \^^ '^ RESPQNDENTS Sarjay Bhosle, son of Late Shri Ganesh Rao Bhosle, aged about 36 years, presently working as Lab Attendant, Government P.G. Arts and Commerce College, Jarhabhata, Bilaspur, District Bilaspur, Chhattisgarh ' VERSUS State of Chhattisgarh, Through Secretary/ Department of Higher Education, DKS Bhawan, Mantralaya, Raipur, Chhattisgarh Commissioner, Directorate of Higher Education, Government Science College Campus, Raipur Distt. Raipur, Chhattisgarh Principal, Government Post Graduate Arts and Commerce College, Biiaspur, Chhattisgarh ''WRIT PETSTSON UNDER ARTICLE 226 QFTH^CONSTITUTION OF INDIA FOR ISSUANCE OF APPROPRIATE AND SUITABLE WRITS, DIRECTION OR DIRECTIONS, ORDER OR QRDERS KIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION(S) N0.7172 OF 2010 PETITIONER Sarjay Bhosle Versus RESPONDENTS State of Chhattisgarh & others (Writ Petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Amrito Das, Advocate for the petitioner. Shri N.N. Roy, Panel Lawyerforthe State. ORDER (ORAU (Passed on this 24th day of February, 2011) 1. 2. Heard learned counsel for the parties. By this petition, the petitioner seeks a direction to the respondent authorities to grant up-gradation of pay scale in respect of the father of the petitioner to the post of Laboratory Assistant (Grade-lll)w.e.f. 27-12-1976. Learned counsel appearing for the petitioncr submits that the father of the petitioner namely; Ganesh Rao Bhosle was appointed as Laboratory attendant in the Government Girls Degree College, Bilaspur on 2-11-1964(Annexure P/1). During the course of his service, he died on 10-01-1996 in harness. According to the petitioner, during the course of sen/ice of the father of the petitioner, his father did not receive any promotion. After the death of father of the petitioner, the petitioner made a request before the respondent authorities for grant of compassionate appointment and the same was also granted by order dated 07-06-1996 (Annexure P/5). Learned counsel further submits that the Government issued notifications with regard to up-gradation of pay scale of laboratory assistant prior to 1976, but the said benefit was not granted to the father of the petitioner by misinterpreting the notifications issued by the Government and granted the said benefit to some of the h""-^.- employees, who were having the education qualification of metric pass. Being arrived by the aforesaid inaction, the said decision was challenged before the State Administrative Tribunal being O.A.No. 1237/1988, which was allowed by the order dated 17-12- 1992. Against thesaid order, the State preferred an SLP before the Supreme Court which was dismissed by order dated 17-12- 1992 (Annexure - P/8). After formation of State of Chhattisgarh, the notification issued by the, then, Government of Madhya Pradesh were adapted and the said benefit was granted to some of the laboratory attendants, but the same could not be granted to the father of the petitioner. In view of aforesaid action on the part of the respondent authorities, the petitioner submitted representations dated 01-05-2008 and 12-04-2010, but the same are not considered till date. Thus, this petition. From the perusal of the records, it appears that the petitioner has not filed any documents to establish the fact that his father has ever made any representation/approach before the respondent authorities for grant of up-gradation of pay scale. In spite of the fact that the cause of action arose in the 1976. From the pleadings, it appears that the petitioner approached the respondent authorities for up-gradation of pay in respect of his father only in the year 2008. The same was done by the petitioner to create cause of action, which arose way back in the year 1976 during the life time of his father. Thus, the petitioner/his father failed to raise the disputeimmediately, when cause of action arose in 1976. Even after decision of the Supreme Court on 17-12-1992, father of the petitioner/petitioner did not do anything till filing of the representation in 2008. 8. Delay of more than three decades cannot be ignored as the order was passed by the un-divided State of Madhya Pradesh. Now new State of Chhattisgarh has been created on 01-11-2000. Thus, the prejudice may be caused to the State of Chhattisgarh. The State of Madhya Pradesh has also not been impleaded as party/respondents. The petitioner/his father have slept over their right for a long period except one or two representations in the year 2008 and thereafter. No other representations have been produced and there is also no reference of other representation in the representation dated 01-05-2008 and 12-04-2010. The petitioner has not done the needful and waited for a long period to come to this court after such a long unexplained, inordinate delay. Thus, this petition cannot be entertainedand the same deserves to be dismissed on the ground of delay and laches. The law on the principle of waiver and acquiescence is well settled that, if the person sleeps over his rights and is not vigilant of his rights and acquiesces with thesituation, he may not be entitled to the same relief as was granted to other vigilant persons. The Supreme Court in S.S. Balu and Another v. State of Kerala and Others , observed as under : "17. It is also well-settled principle of law that "delay defeats equity". The Government Order was issued on 15.1.2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents, Itis now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment....." 1 (2009) 2 SCC 479 |NIIIIII;I||||||^ 10. The decision rendered in S.S. Balu (supra) was referred with approval in Ghulam Rasool Lone v. State of Jammu and Kashmir and Another2 and it was further, observed as under : "19. It is beyond any cavil of doubt that the remedy under Article 226 of the Constitution of India is a discretionary one. For sufficient or cogent reasons a court may in a given case refuse to exercise its jurisdiction; delay and laches being one of them. While considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof." ,11. On laches and delay in agitating the grievances before the Court, the Supreme Court in State of Punjaband another vs. Balkaran Singh observed as under: "22. According to us, the suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 years and then come to court seeking a relief which will upset the seniority of a number of persons who had been shown as seniors in the respective seniority tists. Therefore, on the face of it, a declaratory relief that will have the effect of altering a twelve- year-old and a nine-year-old seniority list could not have been granted by the courts below." 12. The Supreme Court in U.P. Jal Nigam and another vs. Jashwant Singh and another4, obseryed as under: "The question of delay and laches has been examined by this Court in a series of decisions and laches has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution." - 13. The Supreme Court in Tridip Kumar Dingal and others Vs. State ofWestBengal and others5where the appellants took 559 days in approaching the Court, causing unexplained and inordinate delay, obsen/ed as under: 2 (2009)153cc 321 3 (2006)128cc 709 4 (2006) 11 SCC 464 5 (2009) 1 SCC 768) "We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionaryjurisdiction underArticles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches." 14. In Tridip Kumar Dingal and others (supra), the Supreme Court also observed as under: "57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, Moon Milts Ltd. v. Industrial Court and Bhoop Singh v. Union of India). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, Durga Prasad v. Chief Controller of Imports & Exports and Rabindranath Bose v. Union oflndia). 15. In Tridip Kumar Dingal and others (supra) it was further observed as under: "There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose". 16. In Yunus ( Baboobhai) A Hamid Padvekar v. State of Maharashtra6 the Supreme Court observedas under: "Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers. In an appropriate case the High Court may refuse to (JT 2009 (3) SC 487) .^¥a''¥%. 1 ^ 1 17. 18. 19. 20. invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party." In R.N. Bose vs. Union of India7 relied on in Yunus (supra) it was observed that no relief can be given to the petitioner who without any reasonable explanation approaches the Court after inordinate delay. In State of M.P. vs. Nandlal8 relied on in Yunus (supra), it was observed that that the High Court in 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 and such delay is not satisfactory explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was also observed that if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. Applying well settled principle of law to the facts of the case, the petition deserves to be and is accordingly dismissed on the ground of delay and laches. Certified copy of this order be supplied to the parties only after incorporation ofthe necessary amendment in the original petition. Arun Sd/- Satish K. Agnihotri Judge ^ 7(AIR1970SC470 8(AIR1987SC251)