1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/8/2011 CORAM THE HONOURABLE Mr.JUSTICE S.MANIKUMAR W.P.(MD)No.9169 of 2011 U.Sivagurunathan ..Petitioner Vs. The Director of Town Panchayat Kuralagam Chennai 600 108. ..Respondent Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondent to consider the request of the petitioner dated 16/3/2011 in the light of the order passed by this Court in W.P.No.14093 of 2007 and W.P.No.27449 of 2005 dated 11/6/2008 and 23/2/2006. For petitioner ... Mr.Veerakathiravan For respondents... Mr.B.Pugalendhi, Special Government Pleader ORDER At paragraph No.5, of the supporting affidavit, the petitioner has contended that, he should have been promoted as Junior Assistant, between 2003 and 2005, whereas, he has been given promotion to the post of Junior Assistant only in G.O.Ms.No.63 Municipal Administration and Water Supply Department dated 7/4/2010. 2. At paragraph No.6, the petitioner has contended that the District Collector, Thanjavur, vide proceedings in Na.Ka.No.1050/05/TP2 dated 11/6/2010, has appointed the petitioner as Bill Collector. But, as per the Service Rules, he should have been given promotion in the year 2004 – 2005 But promotion has been given only after five years. Hence, the petitioner has made a representation to the respondent dated 16/3/2011, to fix his seniority on the date of eligibility as per the Rules and that the same is pending before the respondent. In the above said circumstances, the petitioner has sought for a mandamus directing the respondent to consider his representation dated 16/3/2011, in the light of the order passed by this Court in W.P.No.14093 of 2007 and W.P.No.27449 of 2005 dated 11/6/2008 and 23/2/2006 respectively. 3. The Supreme Court, has time and again, held that, request for promotion should be made within a reasonable time and inordinate delay or laches on the part of the Government servant, in approaching the Courts should not be entertained. 4. Laches or reasonable time are not defined under any Statute or Rules. "Laches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should https://hcservices.ecourts.gov.in/hcservices/ 2 have been done for an unreasonable or unexplained length of time. What could be the latches in one case might not constitute in another. The latches to non-suit, an aggrieved person person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case. 5. The words "reasonable time", as explained in Veerayeeammal v Seeniammal reported in 2002 (1) SCC 134, at Paragraph 13, is 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.” 6. The statement of law has also been summarized in Halsbury's Laws of England, Para 911 , pg. 395 as follows: "In determining whether there has been such delay as to amount to laches, the chief points to be considered are: (i) acquiescence on the claimant's part; and (ii). any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct https://hcservices.ecourts.gov.in/hcservices/ 3 and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches." 7. 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." (emphasis supplied) 8. M/s.Rup Diamonds and Ors. v. Union of India and Ors., reported in (1989) 2 SCC 356, wherein Their Lordships observed that those people who were sitting on the fence till somebody else took up the matter to the court for https://hcservices.ecourts.gov.in/hcservices/ 4 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 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." 9. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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 latches 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 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 https://hcservices.ecourts.gov.in/hcservices/ 6 made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily." 10. 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. 11. In Jagdish Lal and Ors.,v. State of Haryana and Ors., reported in (1997) 6 SCC 538 : AIR 1997 SC 2366, this Court reaffirmed the rule if a person choses to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case, it was observed as follows: "The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Vir Pal Singh Chauhan case. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage." 12. In Larsen and Toubro Ltd., v. State of Gujarat reported in 1998 (4) SCC 387, the Supreme Court held that a writ petition challenging the notifications issued under Sections 4 and 6 of the Central Act is liable to be dismissed on the ground of delay and laches, if the challenge is not made within a reasonable time. 13. In the case of Government of W.B., v. Tarun K.Roy and Ors., reported in (2004) 1 SCC 347, Their Lordships considered delay as a serious factor and have not granted relief. It was observed as follows: "The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others there from who may be found to be entitled thereto by a court of law." 14. 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 https://hcservices.ecourts.gov.in/hcservices/ 7 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." 15. It is now a well settled principle of law that, while ventilating the grievance, for promotion or seniority, one should approach the competent authority or the Court of law, within a reasonable time. 16. Even as per the averments made in the supporting affidavit, it is the case of the petitioner that, he should have been promoted as Junior Assistant between 2003 and 2005 and as Bill Collector in the year 2004 – 2005. No explanation has been stated in the supporting affidavit, as to what steps, the petitioner had taken from 2003, till he submitted the representation on 16/3/2011. Delay and laches is per se apparent on the face of record. In such circumstances, this Court is not inclined to issue any directions to the respondent to dispose of his representation dated 16/3/2011. Delay defeats equity. Notwithstanding the legal position, if the Director of Town Panchayat, Chennai still chooses to pass appropriate orders dated 1/4/2011, it is open to him to do so. 17. In view of the above, the writ petition is disposed of accordingly. No costs. Consequently, the connected Miscellaneous Petition is also dismissed. Sd/- Assistant Registrar (RTI Act) /True Copy/ Sub Assistant Registrar To The Director of Town Panchayat Kuralagam, Chennai 600 108. +1cc to The Special Government Pleader, SR.No.27792 mvs akm/5.9.11 /7p-3c/ W.P.(MD) No.9169 of 2011 16/8/2011 https://hcservices.ecourts.gov.in/hcservices/