~) 6 l^ ^^^U j^,N&h c •\--[o.t IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W. P. (S) N0. 2-6'2-S / 2009 Petitioner Versus Respondents \^-a^ A^^' ^^y^' ,^"" .^ ^" «&;^- \^ ^ ^- Leelambar Singh Gond, S/o Mehattar Singh Gond, Aged about 61 years, R/o Village - Bodhra, Post - Sakti, Distt. Janjgir Champa - (C.G.) 1. State of Chhattisgarh,Through The Secretary Department of Public Works Mantralay, Dau Kalyan Singh Bhawan, Raipur, Dist:Raipur-(C.G.) 2. The Chief Executive Engineer, Public Works Department, Raipur, Distt. Raipur-(C.G.) /3. The Executive Officer, Public Works Department, Champa, Division Champa, Distt. Janjgir Champa-(C.G.) .4. The Sub Divisional Officer, Public Works Department, Sakti, Dist. Janjgir Champa-(C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA •L.,,...- A^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.2628 OF 2009 PETITIONER Leelambar Singh Gond RESPONDENTS Versus State of Chhattisgarh & Others (Writ petition under Article 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Deepak Jain, counsel forthe petitioner. Shri M.P.S. Bhatia, Dy. Govt. Advocate forthe State. ORDER (ORAL) (Passed on this 5th day of October, 2009) 1. With the consent of learned counsel appearing for the parties, the petition is heard finally. 2. The petitioner, by this petition, seeks the following reliefs : "i. That, the Hon'ble Court may kindly be pleased to quash the impugned order dated 28-4-2003 (Annexure - P/2) ofthe respondent No.3. ii. That, this Hon'ble Court may kindly be pleased to direct the respondents to reinstate the petitioner back in service with all consequential benefits with interest. iii. That, this Hon'ble Court may be pleased to hold that the petitioner has attained the status of permanent employee as per Rule 2 (c) of the Chhattisgarh (Workcharged and Contingency Paid Employees) Pension Rules, 1979 and his age of retirement is 62 years. iv. Any other relief, which may be deed fit and proper in the facts and circumstances of the case, may also be allowed. 3. Shri Jain, learned counsel appearing for the petitioner, would submit that initially the petitioner was appointed as Gangman/Labourer on 1-1-1969 in the respondent department. By order dated 28-4-2003 (Annexure - P/2) the respondent-authorities retired the petition6r from his service on the ground that he has completed 30 years of service. According to the learned counsel for the petitioner, the respondents ought to have retired the petitioner from his service only on attaining the age of 62 years whereas on the date of passing of order dated 28-4-2003 the age of the petitioner was 56 years only. The impugned order has been passed without following principles of natural justice and affording an opportunity of hearing. The petitioner also submitted several ^ representations by raising all of his grievances, but the same have not been considered. Thus, this petition. 4. The petitioner has not offered any explanation for inordinate delay in filing the present petition. It is well settled principle.of law that more than one representation cannot arrest the limitation, as even if representation is not considered and order is not passed within a reasonable period of six months, the petitioner oughtto have approached the High Court for redressal of his grievance. {See S.S. Rathore v. State of Madhya Pradesh }. The petitioner has not done the needful and waited for about 6 years to come to this court at this belated stage. Thus, this petition cannot be entertained and the same deserves to be dismissed on the ground of unexplained inordinate delay and laches. 5. The law on the principle of waiver and acquiescence is well 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 same relief as was granted to other vigilant persons. 6. A Constitution Bench.of the Supreme Court in Chandra Bhushan and another vs. The Deputy Director of Consolidation, Uttar Pradesh (Regional) Lucknow and Others2, observed that "normally the question whether a petition under Art. 226 of the Constitution for the issue of a writ of certiorari had been presented without undue delay or /ac/?es is a question for the High Court to decide and this Court would not interfere with the exercise ofthe discretion ofthe High Court." 7. Further, other Constitution Bench of the r8upreme Court in Rabindranath Bose and Others vs- The Union of India and Others , observed as under: "31. But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about fifteen years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition underArticle 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention ..... r (1989)48cc582 'AIR 1967 SC 1272 ' 1970(1)8cc 84 32. The learned counsel for the petitioners strongly urges that the decision of this Court in M/s. Tilokchand Motichand's case (supra) needs review. But after carefully considering the matter, we are of the view that no relief should be given to petitioners who, without any reasonable explanation, approach this Court under Article 32 of the Constitution after inordinate delay. The highest Court in this land has been given original jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It* is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay." 8. Later, a Constitution Bench of the Supreme Court in Ramchandra Shankar Deodhar and others vs. The State of Maharashtra and others (Bhagwati, J. in para 10) observed as under: "10...... It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches and delay is that the rights which have accrued to others by reason of the delay in filing the p^tition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This principle was stated in the following terms by Hidayatullah, C.J. in Tilok Chand vs. H.B. Munshi (supra): "The party claiming Fundamental Rights must move the Court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on thepart ofthe person moving the Court." 9. In State of M-P. vs- Nandlal5, it was observed that 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 satisfactory explained, the High Court may decline to intervene and grant relief in 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 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. 4 (1974)1 SCC317 5(AIR1987SC251) 10. The Supreme Court in U.P. Jal Nigam and another vs. Jashwant Singh and another , observed as under: "The question of delay and laches has been examined by this Court in a series of decisions and laches has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution." 11. On laches and delay in agitating the grievances before the Court, the Hon'ble Supreme Court in State of Punjab and another vs. Balkaran Singh observed as under: "22. According to us, the suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 years and then come to couri: seeking a relief which will upset the seniority of a number'of persons who had been shown 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 could not have been granted by the courts below." 12. In Yunus (Baboobhai) A Hamid Padvekar v. State of Maharashtra , the Supreme Court 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 hligh 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." 13. The Supreme Court in Tridip Kumar Dingal and others Vs- State of West Bengal and others9 where the appellants took 559 days in approaching the Court, causing unexplained and inordinate delay, observed as under: "We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant 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. 57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in 6 (2006) 11 SCC464 7 (2006)12 SCC 709 8 (JT 2009 (3) SC 487) 9 (2009) 1 SCC 768) 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 matters which have been disposed of or settled or where the rights of third 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 of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, Durga Prasad v. Chief Controller of Imports & Exports and Rabindranath Bose v. Union of India)." Further, "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 will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose". 14. This Court in Smt Shashibala Gandhrala vs. State of Chhattisgarh & Others10 on 3-1-2007 observed that tlthe cause of action arose on 6-6-1995, when the communication was sent by the State Government to the authorities for grant of revised pay-scale. The petitioner has not taken any steps ever since till these petitions were filed in December, 2006 and remained tardy and indolent. This belated approach would certainly cause hardship and inconvenience to otherside." 15. Applying well settled principles of law to the facts of the case on hand, the petitioner has not offered any explanation at all for condonation of inordinate delay and laches. The petitioner from the date of his retirement i.e. 28-4-2003 till filing of this petition i.e. for about 6 years kept quiet and has not taken any steps for redressal of the grievance sought for in this petition, except filing of the representations before the respondent authorities. 16. Without going into the merits of the case, at this belated stage, it appears, the petitioner has acquiesced his right to continue. The petitioner has already completed 62 years in April, 2009. Therefore, no relief can be granted. In the facts of the case, where there is inordinate and unexplained laches and delay in filing the petition, the petitioner is not entitled to any relief by this Court in exercise of its extraordinary jurisdiction underArticle 226 ofthe Constitution of India. 16. For the reasoned mentioned hereinabove, the petition is dismissed at the motion stage itself. ______- Gowri Sd/- Satish K. Agnihotri Judge 10 WP(S)No.7222of2006