^F^ MIGHCOURT OFCHHATTISGARM: BIUASPUR Wnt Petition (s) No. 1591 of2009 Petitioner Chain Singh Pendre, aged about59 years, son of Amru Pendre, Assistant Commissioner, Tribal Development, Office of the Commissioner, Aadim Jati Tatha Anusuchit Jati, Vikas.—Raipur (CG). Versus Respondents 1. State of Chhattisgarh, through the Secretary, Department of Tribal Development, D.K.S. Bhawan, Raipur (CG). 2. The Commissioner, Tribal Development, Raipur (CG). 3. The Chief Secretary, Ghhattisgarh Government, Adim Jati Tatha Anusuchit Jati Vikas, Raipur (CG). 4. The Secretary, Tribal Development, Madhya Pradesh, Bhopal (MP). 5. The Commissioner, Tribal Developmerit, Madhya Pradesh, Bhopal(MP).. (writ Petition under Article 226 of the Constitution of India. SB: Hon'ble Mr. Satish K. Agnihotri, J. Present: Mr. H.S. Patel, counsel for the petitioner. Mr. Arun Sao, Govt. Advocate forthe State. ORAL ORDER (Passed on this27th day of March, 2009) 1) The petitioner, by this petition, seeks the following reliefs B. c. That, the Hon'ble Court may kindly be pleased to direct the respondents authorities to give promotion from the year 1991 instead of 1997 on the post ofAssistant Commissioner with all consequential benefits along with suitable interest. That, the Hon'ble Co.urt may kindlybe pleased to direct the respondents authorities to give arrears bfsalary from the year 1991 with iriterest. 2) The brieffacts, in nutshell, as projected by the petitioner arethat, the petitioner was appointed on the post of District Organizer by order dated 5-9-1981 (Annexure P/1). Thereafter, the department prepared -.. T.- gradation list 6f District Organizer by Order dated 20-12-1990 (Annexure P/2) in which the name of the petitioner finds place at Srl.No.27. By order dated 26-11-1991 (Annexure P/3) the respondents promoted junior employees to the petitioner on the post of Assistant Commissioner/Deputy Director, after constituting a departmental promotion committee. The name of the petitioner was not added in the said list. Against the said promotion order given to the junior employees, the petitioner made several representations on 5-1-1991, 15-1-1992, 20-2-1992, 2-3-1993, 26-3-1993 and 15-3-1999 for promdtion on the post of Assistant Commissioner. However, the petitioner was promoted on the post ofAssistant Commissioner in the year 1997. The petitioner had objected the same as he was entitled for the promotion on thesaid post since 1991. Thereafter, the petitioner made an application on 27-6-2008 and 14.8.2008underthe provisiohs of Right to InformationAct, 2005 before the respohdent- authorities for furnishing information regarding departmental promotion committee held in the year 1991. The respondent-authorities have given information to the petitioner, stating that the petitidner hadnot fulfilled the requisite criteria for promotion to the post of Assistant Commissioner. The respondent-authorities have communicated to the petitioner regarding adverse remarks made in his corifidehtial report, mentioned in theyear 1988-1989. 3) Learned counsel appearing for the petitioner submits that the respdndents have not taken any action on the representations made by the petitioner and the action of the respondent-authorities in not considering the name of the petitioner for promotion on the post 6f Assistant Commissioner in the year 1991 and consKlering the samein the year 1997, is violative to the fundamental rights. Mt. 1 ..^ i e' tii ^^^.i-^s.^lf^-'•--"••^"•;^'- •• -••:Wi.'= .^ -: • • 4) The cause ofaction arose in the year 1991, the petitioner has slept over his right when according tothe petitioner he has been kept on rnaking representations. It is well settled that more than one representation cannot arrest the limitation, as even if, the representation is not consideredand order is not passed within areasonable period of six months, the petitioner may approach the High Court. The petitioner has not done the needfulandwaited for 18 years to come to this court at - this belated stage. Thus, this petition cannot be entertained and the samedeserves to be dismissed on the ground ofdelay and laches. 5) A seven Judges of Hbn'ble Suprerne Court in S. S. Rathore Vs. State of Madhya Pradesh ,while cbnsidering the limitation in filing an application before the Tribunal against the order of dismissal observed as under: "22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the datewtien the appeal was filed or representation was made, the right to sue shall first accrue. Submission ofjust a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation." 6) Hon'ble Supreme Court in C. Jacob Vs. Director of Geology & IWining &Anr^., while considering as to how the representation made by an employee has to be dealt with by the State observed as under:- "7. Every representation to the government for relief, may not be replied on merits. Reprea^ntations relating to matters which. have become sfale or barred by limitatiQn, can be rejectedon that ground alone, withdut examining the merits of the clairn. In regard to representations unrelated to the department, the reply ' {1989) 4SCC 582 2 (2008 AIR SCW 7233) <>; ^ may be only to inform that the matter did not concern the department or to infoi-m the appropriate department. Representation with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnisha fresh cause of action or revive a stale or dead claim." 7) The law on the prineiple of waiver and acquiescence iswell settled that, if the person sleeps over his rights and is not vigilant of his rights and acquiesces with the situation, he may not be entitled to the sarne relief as was granted to other vigilant persons. 8) In the matter of R.N. Bose vs. Unjon of India ,it was observed that no relief can be given to the petitioner who without any reasonable explanation approaches the Court after inordinate delay. 9) In the matter ofState of IVI.P. vs. Nandlal , it was observed that that the High Court in exercise df its discretion does notordinarily 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 reliefin 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 writjurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantirrie is an importantfactor which also weighs with the HighCourtin deciding ^st- whether or nbt to exercise such jurisdiction 10) The Supreme eourt in the matter of....U.P. Jal Nigam and ariother vs. JashwgntSingh and another , observed as under: (AIR 1970 SC 470 "(AIR 1987 SC 251) 5 (2006)11a::c 464 K» p-1 -5 "The question of delayand laches has been examined by this Court in a series of decisionsand laches has been considered to be animportant factor in exercise of the discretionary relief under Article 226 of the Constitutioh." 11) On laches and delay in agitating the grievances before the Court, the Hon'ble Supreme Court, in the matter of State of Punjab and ahother vs. Balkaran Singh , referred with approval the decision in S. S. Rathore (supra) and observed as under: "22. Aecording to us, the suit is also barred by acquiescenGe and estoppel. No one in aservice can sleep over the question ofseniority for more than 12 years and then come to court seeking a relief which will upset the seniority of a nymber of persons who had beenshown as seniors in the respective seniority lists. 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 couldnbt have been granted by the courts below." 12) Hon'ble the Supreme Court in the matter of Tridip Kumar Dingal and others Vs. State of WestBengal andothers whei-e the appellants took 559 days in approaching the Court, causing unexplained and inordinate delay, observed as under: "We are unable to uphold thecontention. It is no dtiubt true that there can be no waiver of fundamental right. But while exercising discretionaryjurisdiction underArtides 32, 226, 227 or 136oftheConstitution, this Court takes intoaccount certain factors and one ofsuch considerations is delay and laches on the part of the applicaht 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." 13) In Tridip Kumar Dingal and others (supra), the Hon'ble supreme Gourt also observed as under: J^£... "57. If the petitioner wants to invoke jurisdiction of a writ court, he should come tcrthe court at the earliest reasonably possible opportunity. hiordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object ofthis principle is not to encourage agitation of stale claims and exhume 6 (2006) 12 SCC 709 7(2009)1SCC768) lU^ Ui i i matters which have been disposed of or settted or where the rights ofthird parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, Moon Mills Ltd. v. Industrial Court and Bhoop Singh v. Union of India). This principle applies even in case ofan infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, Durga Prasad v. Chief Controller of Imports & Exports and Rabindranath Bose v. Unioh of India). 14) 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 witl depend upon what the breach of fuhdamental right and the remedy claimed are ahd when ahd how the delay arose". 15) In the matter of Yunus ( Baboobhai) A Hamid Padvekar v. State 6f IVIaharashtra the Supreme Court, referred with approval the decisions in R. N. Bose (supra) & State of M.P. Vs. Nandlaj (supra), ahd observed as 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 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." 16) In view ofthe aforesaid discussion, the petitioner is not entitled to any relief at this stage after a period of 18years. Thus, the writ petition is dismi^gd. . .- . SdA, ^ ^.^atehX.Agnihotri.: 1 / ' • .^k, •'Judge- : . ! ; j i f