1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/9/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR W.P.(MD)No.11307 of 2011 L.M.Antony ... Petitioner Vs 1. The Joint Director of School Education College Road Chennai. 2. The District Chief Educational Officer Sivagangai District. 3. The District Chief Educational Officer Ramanathapuram. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records of the second respondent pertaining to the proceedings in Na.Ka.No.1998/A4/2011 dated 1/6/2011 and quash the same and consequently direct the respondents to grant Special Grade Pay to the petitioner and other monetary benefits. For petitioner ... Mr.S.M.Mohan Gandhi For respondents... Mr.S.Chandrasekar, GA O R D E R After twenty years of his retirement, the petitioner seemed to have made a representation to the respondents to grant selection grade scale of pay in the post of Graduate Assistant (B.T Grade). Though the said representation has been considered, there were no records available in the School where the petitioner had served. 2. The abovesaid fact is evident from the proceedings of the Chief Educational Officer in R.C.No.4263/A2/2008 dated 24/4/2008 and 3/6/2008. Though the above said authority, has made genuine efforts to obtain the service register and observing that the service rendered in the post of B.T.Assistant and Middle School Head Master are in different cadre and that therefore, the petitioner cannot be granted Selection Grade, he has rejected the request of the petitioner for grant of Selection Grade. The confirmation of selection/special pay is not automatic on completion of ten or twenty years of service. https://hcservices.ecourts.gov.in/hcservices/ 2 3. It is well settled that, if a person has a legal or statutory right to be enforced against the respondents, he should ventilate his grievance before the competent authorities, or the Court of law within a time limit, if provided under the statutory rules or any Government Orders issued from time to time. If there is no such Government Order or Statutory rule prescribing a specific time limit, then such person whose rights are infringed or denied any benefit, arising out of any Government Order, ought to have approached the Court, within a reasonable time. 4. What is reasonable time has not been spelt out in any rule. However, the Supreme Court in Veerayeeammal v. Seeniammal reported in 2002 (1) SCC 134, has explained the words "reasonable time", and at Paragraph 13, the Supreme Court held 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.” 5. The delay and laches on the part of the petitioners is per se apparent. In this context, this Court deems it fit to extract few decisions dealing with delay and laches, which are as follows: (i) In P.S.Sadasivaswamy v. State of Tamil Nadu reported in AIR 1974 SC 2271, the Apex Court held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 3 "....... 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 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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 https://hcservices.ecourts.gov.in/hcservices/ 6 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." 6. 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 but were content to be dormant and chose to sit on the fence https://hcservices.ecourts.gov.in/hcservices/ 7 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." 7. Conferment of selection/special grade is also not automatic and as per the decisions of this Court in P.D.Mahadevan v. Secretary to Government reported in 2011(6) MLJ 419, the Government servant has to satisfy the element of satisfactory service. In this context, it is useful to extract the relevant paragraphs of the said judgment, which are as follows: "10. In Lalit Mohan Deb v. Union of India (supra) case, "Selection Grade", has been explained as follows: "A promotion post is a higher post with a higher pay. A selection grade has higher pay but in the same post. A selection grade is intended to ensure that capable employees who (sic) may not get a chance of promotion on account of limited outlets of promotions should atleast be placed in the selection grade to prevent stagnation on the maximum of the scale. Selection grades are, therefore, created in the interest of greater efficiency." 11. In the above judgment, the Supreme Court considered the recommendations of the Central Pay Commission, recognising payment of higher-scale of pay to the employees who have no outlets or limited outlets for higher posts. Paragraph 10 of Chapter X of the report, considered by the Supreme Court, is re- produced hereunder: "The Commission observed "with the object of providing incentive to employees who have no outlets or very limited outlets for promotion to higher posts, we are recommending in a number of cases that a certain percentage of the posts in the grade-usually 10 per cent- should carry a some-what higher scale of pay even though there will be no change in the duties. Following the https://hcservices.ecourts.gov.in/hcservices/ 8 terminology in vogue we have described these posts as selection grade posts". 12. At paragraph 9, the Supreme Court in the above judgment, further held that, "But the absence of such rules is no bar to the Administration giving instructions regarding promotion to the higher grade as long as such instructions are not inconsistent with any rule on the subject. The point was considered by this Court in Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910 and it was declared that in the absence of statutory rules regulating promotion to selection grade posts the Government is competent to issue administrative instructions as long as those instructions are not inconsistent with the rules already framed." 8. In the light of the above discussion, this Court is of the view that the argument of the learned counsel for the petitioner that in every case where there is an unreasonable delay or laches, Courts should extend the benefit of a judgment, cannot be countenanced, in view of the decision of the Supreme Court 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 https://hcservices.ecourts.gov.in/hcservices/ 9 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.” 9. In view of the judicial pronouncements of the Apex Court, the Writ Petition stands dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To 1. The Joint Director of School Education College Road Chennai. 2. The District Chief Educational Officer Sivagangai District. 3. The District Chief Educational Officer Ramanathapuram. +one cc to Special Government Pleader, Sr.No.34365 +1cc to Mr.S.M.Magalingam, Advocate, Sr.No.34229 W.P.(MD) No.11307 of 2011 mvs SMA/20.10.2011/6C/9P https://hcservices.ecourts.gov.in/hcservices/