1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.09.2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.10866 of 2011 Joy Selvakumari ... Petitioner Vs. 1.The Director of School Education, Chennai - 600 006. 2.The Chief Educational Officer, Chief Educational Office, Collectorate Campus, Karur. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus, directing the 2nd respondent to dispose of the petitioner's representation, dated 06.06.2011, to the effect of granting incentive increment for possessing M.Phil., Degree in the light of G.O.Ms.No.1170, dated 20.12.1993 and G.O.Ms.No.194, dated 10.10.2006, within a stipulated time. For petitioner .. Mr.S.Deenadhayalan For respondent .. Mr.S.Chandra Sekar, Government Advocate ORDER Though the petitioner has sought for a mandamus, directing the second respondent to dispose of the representation, dated 06.06.2011, seeking to grant incentive for acquiring M.Phil degree course, in the light of G.O.Ms.No.1170, dated 20.12.1993 and G.O.Ms.No.194, dated 10.10.2006, this Court is not inclined to issue any direction, as prayed for, for the reasons that the petitioner has already retired from service in the year 2010 itself. 2.The averments in the supporting affidavit shows that the petitioner has completed her Master of Philosophy (M.Phil) in Physical Education in August, 1996 itself. If at all the petitioner was entitled to the incentive increment, on acquisition of higher qualification in 1996, she should have made her claim immediately or within a reasonable time. G.O.Ms.No.1170, Education, Science and Technology Department, dated 20.12.1993, relied on by the petitioner, was very much in existence, at that time. Then, G.O.Ms.No.194, School Education Department, dated 10.10.2006, has been issued during her tenure as Physical Education Director Grade I. Now, after nearly 17 years, from the date of issuance of G.O.Ms.No.1170 and four years, from the date of issuance of G.O.Ms.No.194, School Education Department and one year, from the date of her retirement, the petitioner has sought for a mandamus to consider the representation, dated 06.06.2011. Undue delay has not been explained by the petitioner. 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 https://hcservices.ecourts.gov.in/hcservices/ 2 grievance before the competent authorities, 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 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 petitioner 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;- "....... 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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 which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burdenf10461wp(md)2011 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." https://hcservices.ecourts.gov.in/hcservices/ 4 (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 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, https://hcservices.ecourts.gov.in/hcservices/ 5 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 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." https://hcservices.ecourts.gov.in/hcservices/ 6 6.In view of the above, this Court is not inclined to grant the relief of mandamus. Hence, the writ petition is dismissed. No costs. Sd/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar To 1.The Director of School Education, Chennai - 600 006. 2.The Chief Educational Officer, Chief Educational Office, Collectorate Campus, Karur. +1CC TO THE SPECIAL GOVERNMENT PLEADER, SR.33152 Gcg SR : 18.10.2011 : 6p/4c W.P.(MD) No.10866 of 2011 23.09.2011 https://hcservices.ecourts.gov.in/hcservices/