IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28 - 3 - 2011 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE M. VENUGOPAL Writ Appeal No. 2031 of 2010 N. Natesan ... Appellant vs The Government of Tamil Nadu Rep. by Secretary to Government Municipal Administration and Water Supply Department Fort St. George Chennai ... Respondents Appeal filed under Clause 15 of the Letters Patent against the order dated 05.4.2010 made in W.P. No. 8694 of 2006. W.P. No. 8694 of 2006: Writ petition filed under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.2555 of 2001 on the file of the Tamil Nadu Administrative Tribunal with a prayer to direct the respondent to issue orders revising the petitioner's seniority in the cadre of Joint Director of Municipal Administration above his immediate junior (late) Thiru A.Maiyalagan and consequently direct the respondent to promote the petitioner as Joint Director of Municipal Administration from the date of promotion of his immediate junior (late) Thiru A.Maiyalagan and further consequently direct the respondent herein to revise the scale of pay of the petitioner in the post of Joint Director of Municipal Administration and his pensionary benefits with all monetary and service benefits. For Appellant : Mr. S. Baskaran For Respondent : Mrs. Malarvizhi Udayakumar, Spl. GP JUDGMENT (Delivered by ELIPE DHARMA RAO, J.) Heard the learned counsel for the appellant and the learned Special Government Pleader representing the respondent and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 2. The unsuccessful petitioner before the learned single Judge in W.P. No. 8694 of 2006 (O.A. No. 2555 of 2001 and transferred) has filed this appeal challenging the order dated 05.4.2010 whereby and whereunder the writ petition filed by the petitioner was dismissed. 3. The basic facts giving rise to filing of the writ petition as well as the writ appeal are as follows :- The petitioner, who joined as Assistant in Secretariat on 07.8.1967, after serving in various posts, was finally promoted to the post of Municipal Commissioner, Senior Grade I on 18.11.1991 and retired on superannuation on 30.11.1997. The grievance of the petitioner is that though he was due for promotion as Joint Director of Municipal Administration, he was denied on the sole ground that he had 17(b) charges pending against him and his immediate junior was promoted overlooking his seniority. It is further stated that even though the appellant was exonerated from the charges, subsequently, his case was not considered despite his representation dated 25.7.2000 requesting to fix his seniority in the cadre of Joint Director of Municipal Administration above his junior and for the consequential promotion. Hence, he filed O.A. No. 2555 of 2001, which was transferred and re-numbered as W.P. No. 8694 of 2006. 4. The learned single Judge, on consideration of the materials, not satisfied with the reasons given by him for not making his grievance while in service and further finding that the charges were dropped only subsequent to his retirement, held that he cannot claim retrospective promotion and accordingly, dismissed the writ petition. Aggrieved by the same, he has preferred the present appeal. 5. Learned counsel appearing for the appellant contended that once the delinquent officer is exonerated from the charges, as per G.O. Ms. No. 368, P&AR, dated 18.10.1993, promotion should be granted with all consequential benefits from the date of promotion of his immediate junior and since the Department failed to do the same, the same amounts to discrimination in violation of Articles 14 and 16 of the Constitution of India. He further submitted that the learned Judge without considering the said aspect, dismissed the writ petition and sought for interference of this Court. 6. Learned Special Government Pleader representing the respondent submitted that at the time of preparation of panel for promotion to the post of Joint Director, the appellant was facing a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and hence, his name was not considered for promotion and subsequently, the charges were dropped only on 26.5.2000, that is, after his retirement on superannuation on 30.11.1997. She further submitted that though the panel was issued on 01.4.1997, the appellant approached the Tribunal only during 2001, after a period of four years and hence, according to her, the order of the learned Judge requires to interference. https://hcservices.ecourts.gov.in/hcservices/ 7. A mere reading of the records would show that the panel for promotion to the post of Joint Director of Municipal Administration was issued on 01.4.1997 whereas the representation was made only on 25.7.2000, ie., after a period of two and half years and the Original Application was filed during 2001, ie., after a period of four years. 8. The Rule of Law is clear that the delay of each day should be explained to the satisfaction of the Court. In the present appeal, a perusal of the records would make it clear that the panel for promotion was issued on 01.4.1997 whereas the Original Application was filed only after a period of four years, for which no reason is forthcoming from the appellant. 9. A Constitution Bench of the Supreme Court, while dealing with delay in approaching the Court in respect of service matters, vide its decision reported in AIR 1990 SC 10 [S.S. Rathore vs. State of Madhya Pradesh] held that parties who are having grievance over service matters must approach the Court at the earliest point of time and held in paragraph 22 that submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation. 10. Further, in the judgment relating to Bhoop Singh vs. Union of India and others [(1992) 3 SCC 136], the Supreme Court held that inordinate and unexplained delay itself can be a ground to refuse the relief. 11. In the decision of the Supreme Court in Karnataka Power Corporation Ltd. Through its Chairman and Managing Director and another v. K.Thangappan and another [2006 (4) SCC 322], speaking for the Bench, Arijit Pasayat, J. in paragraphs 6 to 11 observed as follows: Para 6: "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 under Article 226 of the Constitution. In an appropriate case the High Court may refuse to 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. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably. Para 7: What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd was approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Shri Balwant Regular Motor Service. Sir Barnes had stated: https://hcservices.ecourts.gov.in/hcservices/ “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 of limitation, 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 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.” Para 8: It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay. Para 9: It was stated in State of M.P. v. Nandlal Jaiswal 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 satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its https://hcservices.ecourts.gov.in/hcservices/ train new injustices, and 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. It was pointed out that 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. Para 10: It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. This was reiterated in Rabindranath Bose case by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar Patnaik also.)" 12. The Supreme Court, further, in the judgment relating to the State of Tamil Nadu v. Seshachalam [2007 AIR SCW 7750] held that law leans in favour of those who are alert and vigilant. Speaking for the bench, S.B. Sinha, J. in paragraph 11 observed as follows: Para 11: "Some of the respondents might have filed representations but filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and / or laches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant." 13. A Division Bench of this Court in its decision reported in S.Ganesan vs. Indian Bank represented by its Chairman and Managing Director, Chennai and others (2007 (2) M.L.J. 98) has held that the writ petitions filed after delay of nearly 2 or 3 years without justification, are liable to the dismissed on account of delay and laches. https://hcservices.ecourts.gov.in/hcservices/ 14. In the case on hand, even the representation was made with delay of three years and that too, after the retirement. There is absolutely no explanation in the affidavit to justify the delay in filing the writ petition after a lapse of four years. 15. Secondly, a perusal of the records show that at the time of preparation of panel for promotion to the post of Joint Director of Municipal Administration, the appellant was facing a charge memo under Rule 17(b) of the Rules and, therefore, his claim was passed over pending the criminal action and subsequently, it was dropped only during the year 2000 whereas the appellant retired on superannuation even prior to that, ie., on 30.11.1997. Further, even at the time of filing the Original Application, the appellant was 62 years and assailing the correctness of the panel for promotion to the post of Joint Director after a period of four years after his retirement cannot be entertained. In such case, as rightly held by the learned Judge, the appellant cannot claim some retrospective promotion when he was not in service. If the appellant is so aggrieved, he should have approached the respondent in time when he was in service. In view of the above, we are of the view that the learned Judge rightly dismissed the writ petition. We see no illegality or irregularity in the order of the learned Judge warranting interference of this Court. This Writ Appeal fails and it stands dismissed accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gri To The Secretary to Government Government of Tamil Nadu Municipal Administration and Water Supply Department Fort St. George Chennai. 1 cc To The Government Pleader, SR.22169 W.A. No. 2031 of 2010 sp(co) pmk.20.4.2011 https://hcservices.ecourts.gov.in/hcservices/