1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.09.2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.11154 of 2011 R.Selvaraj ... Petitioner Vs. The Agricultural Production Commissioner and Principal Secretary to the Government, Agriculture Department, Chief Secretariat, Chennai-600 009. ... Respondent PRAYER: Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus, directing the respondent to dispose of the petitioner's representation dated 01.06.2011 for refixing the petitioner's seniority in the cadre of Foreman and consequent seniority in the cadre of Junior Engineer on merits within a specified time frame. For petitioner : Mr.S.Visvalingam For Respondent : Mr.S.Chandrasekar Government Advocate O R D E R At the fag end of the service, the petitioner, aged 56 and working as Assistant Engineer under the control of Executive Engineer (Agri Engineering), Madurai, has made a representation dated 01.06.2011 to the Agricultural Production Commissioner and Principal Secretary to Government, Agricultural Department for refixing his seniority in the cadre of Foreman and consequently, refix his seniority in the cadre of Junior Engineer on merits and pass appropriate orders. 2. Pleadings and material on record shows that the petitioner, joined the department on 12.12.1980. When he was expecting promotion, on the basis of his placement in a list, dated 31.12.1980, prepared by the Chief Engineer (Agro Engineering), Chennai, for the post of Junior Engineer, all the 182 persons holding diploma qualification were promoted as Junior Engineers, except 9 persons including the petitioner. 3. It is the grievance of the petitioner that subsequently when his turn came up, he was not considered for promotion to the post of Junior Engineer. But directly recruited foremen were given promotion as Junior Engineers. Lateron, the petitioner was promoted as Junior Engineer in the year 1998 and bit is the case of the petitioner that before his promotion to the abovesaid post, 27 persons, who were juniors to him and who did not even enter the service, at the time of preparation of consolidated list dated 31.12.1980 of the Chief Engineer, Chennai, have been promoted. It is the case of the petitioner that he made repeated representations to the Government to refix his seniority in the cadre of foreman, on par with the 175 persons, who were already promoted in the years 1983, 1984 and 1985. As the representations did not yield any https://hcservices.ecourts.gov.in/hcservices/ 2 response, he further made a representation, dated 01.06.2011 to the Agricultural Production Commissioner and Principal Secretary to Government. 4. Pleadings and material on record further disclose that promotions to the post of Junior Engineer, on the basis of the consolidated list dated 31.12.1980, stated supra, have been made in the year 1983, 1984 and 1985. The petitioner has also been subsequently promoted as Assistant Engineer. Now, after nearly 26 years, he has sent a representation to the Agricultural Production Engineer/Principal Secretary to the Government, Agricultural Department, to refix his seniority in the cadre of foreman and consequently in the post of Junior Engineer. 5. Section 35$(f) of the Tamil Nadu State & Subordinate Services Rules is applicable to the case of the petitioner and it reads as follows: “Application for the revision of seniority of a person in a service, class, category or grade shall be submitted to the appointing authority within a period of 3 years from the date of appointment to such service, class, category or grade or within a period of 3 years from the date of order fixing the seniority, as the case may be. Any application received after the said period of 3 years shall be summarily rejected.” 6. Reference can also be made to few decisions of the Supreme Court, where inordinate delay and laches, on the part of the litigant in approaching the Court has been disapproved: (i) In P.S.Sadasivaswamy v. State of Tamil Nadu reported in AIR 1974 SC 2271, relating to promotion, 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." (ii) 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 https://hcservices.ecourts.gov.in/hcservices/ 3 mandamus, certiorari or any other relief. (iii) 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 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." (iv) 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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, 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." (v) 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. (vi) 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." 7. While dealing with a belated claim and filing of a Writ Petition on the basis of the order obtained in some other Writ Petitions, the Supreme Court in M/s.Rup Diamonds and Ors. v. Union of India and Ors., reported in (1989) 2 SCC 356, has 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: "Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant https://hcservices.ecourts.gov.in/hcservices/ 6 but were content to be dormant and chose to sit on the fence till somebody else's 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 a year after the first rejection. As observed by the Court in Durga Prashad case, 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. In S.S. Balu v. State of Kerala, (2009) 2 SCC 479, wherein at paragraph No.17, the Supreme Court has held as follows: "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 the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is 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. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In NDMC v. Pan Singh9 this Court held: (SCC p. 283, para 16) “16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction.” https://hcservices.ecourts.gov.in/hcservices/ 7 9. Following the decisions of the Hon'ble Supreme Court and having regard to rule 35$(f) of Tamil Nadu State & Subordinate Service Rules, this Court is of the view that there is no statutory or legal right to seek a mandamus to consider his representation dated 01.06.2011, for revision of seniority, after so many years. Any direction from this Court to consider the representation for revision of seniority in the post of Foreman and Junior Engineer, at this length of time, would tantamount to resurrecting a dead matter. Courts have consistently held that sale matters should not be adjudicated and in the light of the above, this Court is not inclined to issue any writ. In such view of the matter, the writ petition is liable to be dismissed. 10.The Writ Petition is dismissed accordingly. No costs. Sd/- Assistant Registrar (AE) /True copy/ Sub Assistant Registrar To The Agricultural Production Commissioner and Principal Secretary to the Government, Agriculture Department, Chief Secretariat, Chennai-600 009. +1CC TO THE SPECIAL GOVERNMENT PLEADER, SR.33860 VS SR : 21.10.2011 : 7p/3c W.P.(MD).No.11154 of 2011 28.09.2011 https://hcservices.ecourts.gov.in/hcservices/