Chattisgarh High Court

Yadvendra Singh And Ors vs State Of Chhattisgarh And Ors on 19 July, 2024

Neutral Citation
2024:CGHC:26151
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No.2350 of 2014
1. Yadvendra Singh Shri Awadh Bihari Aged About 55 Years Subedar
M, Working Under The Office Of Police Head Quarter, General
Branch Raipur, Ps Civil Line, Distt Raipur, Cg, Chhattisgarh
2. S.P.Shukla S/o Lt Shri Shivnath Prasad Shukla Aged About 58
Years Subedar M, Working Under The Office Of Police Head
Quarter, General Branch Raipur, Ps Civil Line, Distt Raipur, Cg,
District : Raipur, Chhattisgarh
3. Ravindra Ongale S/o Shri T.M.Ongale Aged About 56 Years
Subedar M, Working Under The Office Of Police Head Quarter,
General Branch Raipur, Ps Civil Line, Distt Raipur, Cg, District :
Raipur, Chhattisgarh
4. L.N.Sharma S/o Shri S.B.Sharma Aged About 54 Years Subedar
M, Working Under The Office Of Police Head Quarter, General
Branch Raipur, Ps Civil Line, Distt Raipur, Cg, District : Raipur,
Chhattisgarh
---- Petitioners
Versus
1. State Of Chhattisgarh Through Secretary, Home Affairs, Police
Department, Mahanadi Bhawan,new Mantralaya, Raipur, Dist
Raipur, Cg, Chhattisgarh
2. The Director General Of Police Police Head Quarters, Raipur, Dist
Raipur, Cg, District : Raipur, Chhattisgarh
3. The Secretary, General Administration Department, Police Head
Quarters, Raipur, Dist Raipur, Cg, District : Raipur, Chhattisgarh
4. (Deleted) A.P.Tripathi (Died) As Per Honble Court Order Dated 11-
06-2024.
5. Smt. Meena Naranvare Subedar M, Working Under The Office Of
Police Head Quarter, General Branch Raipur, Ps Civil Line, Distt
Raipur, Cg, District : Raipur, Chhattisgarh
---- Respondents

For Petitioners : Mr. Shayon Kar, Advocate holding the brief of
Mr. Prakash Tiwari, Advocate
For State : Ms. Nupoor Sonkar, Panel Lawyer

Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
19.07.2024
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2024:CGHC:26151
Heard.

1. The petitioners have filed this petition seeking the following

relief(s):-

"10.1 "The Hon'ble Court may kindly be pleased to
call for the entire records pertaining to the promotion
case of the petitioners for its kind perusal.
10.2 The Hon'ble Court may kindly be pleased to set
aside the order impugned dated 01.02.2014
(Annexure P/1) issued by the respondent No.2.
10.3 That, the Hon'ble Court may kindly be pleased to
direct the respondent authorities, particularly the
respondent No.2 to consider the name of the
petitioners for their next promotion to the post of
Subedar (M) w.e.f. 2005 instead of 2009 with all
consequential benefits.

10.4 That, the Hon'ble Court may kindly be pleased to
direct the respondent authorities, particularly the
respondent No.2 to recall the gradation list issued for
the year 2013(Annexure P/8) and place the name of
the petitioners in pursuance to the gradation list of
2003 (Annexure P/7).

10.5 That, the Hon'ble Court may kindly be pleased to
direct the respondent authorities, particularly the
respondent No.2 place the name of respondents No.4
& 5 at the fag end of the gradation list in view of GOP
No.55 (Annexure P/2) and Rule 2005 (Annexure P/4).
10.6 That, the Hon'ble Court may kindly be pleased to
grant any other relief, as if may deem fit and
appropriate.

10.7 Cost of the petition may also be given."

2. Mr. Kar, the learned counsel appearing for the petitioners

submitted that the petitioners were holding the post of Sub-

Inspector (M) under the Police Head Quarter, General Branch,

Raipur in the year 2005. He further submitted that respondents No.
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4 & 5 were juniors to the petitioners who were promoted to the

post of Subedar (M) and the candidature of the petitioners was not

considered by the Departmental Promotion Committee for the

reasons best known to it. He also submitted that the petitioners

were promoted to the post of Subedar (M) in the year 2009 and a

seniority list was published in the year 2013, then they came to

know that they had been placed below respondents No. 4 & 5 in

the gradation list. He further argued that the petitioners are entitled

to get the seniority and consequential benefits from the year 2005

when respondents No. 4 & 5 were promoted.

3. On the other hand, Ms. Sonkar, the learned Panel Lawyer

appearing for the State would oppose the submissions made by

Mr. Kar. Ms. Sonkar submitted that respondents No. 4 & 5 were

transferred to the State of Chhattisgarh on the mutual ground and

thereafter, the seniority list was published. She further submitted

that respondents No. 4 & 5 were promoted to the post of Subedar

(M) in the year 2005 but no action was taken by the petitioners. In

the year 2009, the petitioners were also promoted to the post of

Subedar (M). She also submitted that the gradation list was

published in the year 2005 and thereafter, in the year 2009, and

the subsequent gradation list was published in the year 2013. She

further argued that the petitioners have approached this Court

claiming therein seniority from the year 2005 when respondents

No. 4 & 5 were promoted. She also stated that the claim of the
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petitioners is stale as the instant petition has been filed after a

lapse of nine years without explaining the reasons for the delay.

4. I have heard learned counsel appearing for the parties and

perused the documents placed on record.

5. In the present petition, the petitioners have not pleaded when they

were appointed and when respondents No. 4 & 5 were promoted

to the post of Subedar (M). Even the date of the meeting of DPC

has not been pleaded in the instant writ petition. Admittedly,

respondents No. 4 & 5 were promoted to the post of Subedar (M)

in the year 2005. It is pleaded that respondents No. 4 & 5 were

transferred to the State of Chhattisgarh after the reorganization of

the State of Chhattisgarh by mutual consent, therefore, they

should have been placed below the petitioners in the gradation list.

The contention raised by the learned counsel appearing for the

petitioners appears to be reasonable but the petitioners failed to

challenge the gradation list as well as the order of promotion which

was passed in the year 2005. After the year 2005, the petitioners

were promoted to the post of Subedar (M) in the year 2009. In the

year 2014, the present petition was filed claiming therein seniority

from the year 2005.

6. The Hon'ble Supreme Court in the matter of
Chennai

Metropolitan Water Supply and Sewerage Board and Others

Vs. T.T. Murali Babu
reported in (2014) 4 SCC 108 held as
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under:-

'17. In the case at hand, though there has been four
years' delay in approaching the court, yet the writ court
chose not to address the same. It is the duty of the court
to scrutinize whether such enormous delay is to be
ignored without any justification. That apart, in the
present case, such belated approach gains more
significance as the respondent employee being
absolutely careless to his duty and nurturing a
lackadaisical attitude to the responsibility had remain
unauthorizedly absent on the pretext of some kind of ill
health. We repeat at the cost of repetition that remaining
innocuously oblivious to such delay does not foster the
cause of justice. On the contrary, it brings in injustice, for
it is likely to affect others. Such delay may have impact
on others' ripened rights and may unnecessarily drag
others into litigation which in acceptable realm of
probability, may have been treated to have attained
finality. A court is not expected to give indulgence to such
indolent persons -who compete with "Kumbhakarna" or
for that matter "Rip Van Winkle" . In our considered
opinion, such delay does not deserve any indulgence and
on the said ground alone the writ court should have
thrown the petition overboard at the very threshold.

7. Recently, the Apex Court in the matter of
Rushibhai

Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation

reported in 2022 SCC Online SC 64 held as under:-

'9. The doctrine of delay and laches, or for that matter
statutes of limitation, are considered to be statutes of
repose and statutes of peace, though some contrary
opinions have been expressed (in Nav Rattanmal Vs.
state of Rajasthan, AIR 1961 SC 1704). The courts have
expressed the view that the law of limitation rests on the
foundations of greater public interest for three reasons,
namely, (a) that long dormant claims have more of
cruelty than justice in them; (b) that a defendant might
have lost the evidence to disapprove a stale claim; and

(iii) that persons with good causes of action (who are
able to enforce them) should pursue them with
reasonable diligence (
State of Kerala Vs. V.R.
Kalliyanikutty
, (1999) 3 SCC 657 relying on Halsbury's
Laws of England, 4th Edn., Vol. 28, para 605; Halsbury's
Laws of England , Vol. 68 (2021) para 1005. Equally,
change in de facto position or character, creation of third
party rights over a period of time, waiver, acquiesce, and
need to ensure certitude in dealings, are equitable public
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policy considerations why period of limitation is
prescribed by law. Law of limitation does not apply to
writ petitions, albeit the discretion vested with a
constitutional court is exercised with caution as delay
and laches principle is applied with the aim to secure the
quiet of the community, suppress fraud and perjury,
quicken diligence, and prevent oppression.
(see
Popat
and Kotecha Property Vs. State Bank of India Staff
Association
(2005) 7 SCC 510).Therefore, some
decisions and judgments do not look upon pleas of delay
and laches with favour, especially and rightly in cases
where the persons suffer from adeptness, or incapacity
to approach the courts for relief. However, other
decisions, while accepting the rules of limitation as well
as delay and laches, have observed that such rules are
not meant to destroy the rights of the parties but serve a
larger public interest and are founded on public policy.

There must be a lifespan during which a person must
approach the court for their remedy. Otherwise, there
would be unending uncertainty as to the rights and
obligations of the parties. (See
N. Blarkrishnan Vs. M.
Krishnamurthy
, (1998)7 SCC 123.
Referring to the
principle of delay and laches, this Court, way back in
Moons Mils Ltd Vs. M.R. Mehar, President, Industrial
Court, Bombay AIR 1967 SC 1450, had referred to the
view expressed by Sir Barnes Peacock in The Lindsay
Petroleum Company and Prosper Armstrong Hurd,
Abram Farewell, and John Kemp, (L.R.) 5 P.C.221 in the
following words:

" 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 this
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 of 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 relates to the remedy."

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8. The Hon'ble Supreme Court in the matter of
Bichitrananda

Behera Vs. State of Orissa and others
reported in 2023 Livelaw

(SC) 883, under relevant para 21 held as under:-

"21. Profitably, we may reproduce relevant
passagesfrom certain decisions of this Court:

(
A) Union of India v Tarsem Singh
, (2008) 8 SCC 648:

"To summarise, normally, a belated service related claim
will be rejected on the ground of delay and laches
(where remedy is sought by filing a writ petition) or
limitation (where remedy is sought by an application to
the Administrative Tribunal). One of the exceptions to
the said rule is cases relating to a continuing wrong.
Where a service related claim is based on a continuing
wrong, relief can be granted even if there is a long delay
in seeking remedy, with reference to the date on which
the continuing wrong commenced, if such continuing
wrong creates a continuing source of injury. But there is
an exception to the exception. If the grievance is in
respect of any order or administrative decision which
related to or affected several others also, and if the
reopening of the issue would affect the settled rights of
third parties, then the claim will not be entertained. For
example, if the issue relates to payment or refixation of
pay or pension, relief may be granted in spite of delay
as it does not affect the rights of third parties. But if the
claim involved issues relating to seniority or promotion,
etc., affecting others, delay would render the claim stale
and doctrine of laches/limitation will be applied. Insofar
as the consequential relief of recovery of arrears for a
past period is concerned, the principles relating to
recurring/successive wrongs will apply. As a
consequence, the High Courts will restrict the
consequential relief relating to arrears normally to a
period of three years prior to the date of filing of the writ
petition." (emphasis supplied)
(B) Union of India v N Murugesan, (2022) 2 SCC 25:

"Delay, laches and acquiescence

20. The principles governing delay, laches, and
acquiescence are overlapping and interconnected on
many occasions. However, they have their distinct
characters and distinct elements. One can say that
delay is the genus to which laches and acquiescence
are species. Similarly, laches might be called a genus to
a species by name acquiescence. However, there may
be a case where acquiescence is involved, but not
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laches. These principles are common law principles,
and perhaps one could identify that these principles find
place in various statutes which restrict the period of
limitation and create non consideration of condonation
in certain circumstances. They are bound to be applied
by way of practice requiring prudence of the court than
of a strict application of law. The underlying principle
governing these concepts would be one of estoppel.
The question of prejudice is also an important issue to
be taken note of by the court.

Laches

21. The word "laches" is derived from the French
language meaning "remissness and slackness". It thus
involves unreasonable delay or negligence in pursuing
a claim involving an equitable relief while causing
prejudice to the other party. It is neglect on the part of a
party to do an act which law requires while asserting a
right, and therefore, must stand in the way of the party
getting relief or remedy.

22. Two essential factors to be seen are the length of
the delay and the nature of acts done during the
interval. As stated, it would also involve acquiescence
on the part of the party approaching the court apart from
the change in position in the interregnum. Therefore, it
would be unjustifiable for a Court of Equity to confer a
remedy on a party who knocks its doors when his acts
would indicate a waiver of such a right. By his conduct,
he has put the other party in a particular position, and
therefore, it would be unreasonable to facilitate a
challenge before the court. Thus, a man responsible for
his conduct on equity is not expected to be allowed to
avail a remedy.

23. A defence of laches can only be allowed when there
is no statutory bar. The question as to whether there
exists a clear case of laches on the part of a person
seeking a remedy is one of fact and so also that of
prejudice. The said principle may not have any
application when the existence of fraud is pleaded and
proved by the other side. To determine the difference
between the concept of laches and acquiescence is
that, in a case involving mere laches, the principle of
estoppel would apply to all the defences that are
available to a party. Therefore, a defendant can
succeed on the various grounds raised by the plaintiff,
while an issue concerned alone would be amenable to
acquiescence.

Acquiescence

24. We have already discussed the relationship
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between acquiescence on the one hand and delay and
laches on the other.

25. Acquiescence would mean a tacit or passive
acceptance. It is implied and reluctant consent to an
act. In other words, such an action would qualify a
passive assent. Thus, when acquiescence takes place,
it presupposes knowledge against a particular act. From
the knowledge comes passive acceptance, therefore
instead of taking any action against any alleged refusal
to perform the original contract, despite adequate
knowledge of its terms, and instead being allowed to
continue by consciously ignoring it and thereafter
proceeding further, acquiescence does take place. As a
consequence, it reintroduces a new implied agreement
between the parties. Once such a situation arises, it is
not open to the party that acquiesced itself to insist
upon the compliance of the original terms. Hence, what
is essential, is the conduct of the parties. We only dealt
with the distinction involving a mere acquiescence.
When acquiescence is followed by delay, it may
become laches. Here again, we are inclined to hold that
the concept of acquiescence is to be seen on a case-to-
case basis." (emphasis supplied)
(C) Chairman, State Bank of India v M J James, (2022)
2 SCC 301:

"36. What is a reasonable time is not to be put in a
straitjacket formula or judicially codified in the form of
days, etc. as it depends upon the facts and
circumstances of each case. A right not exercised for a
long time is nonexistent. Doctrine of delay and laches
as well as acquiescence are applied to non-suit the
litigants who approach the court/appellate authorities
belatedly without any justifiable explanation for bringing
action after unreasonable delay. In the present case,
challenge to the order of dismissal from service by way
of appeal was after four years and five months, which is
certainly highly belated and beyond justifiable time.
Without satisfactory explanation justifying the delay, it is
difficult to hold that the appeal was preferred within a
reasonable time. Pertinently, the challenge was
primarily on the ground that the respondent was not
allowed to be represented by a representative of his
choice. The respondent knew that even if he were to
succeed on this ground, as has happened in the writ
proceedings, fresh inquiry would not be prohibited as
finality is not attached unless there is a legal or statutory
bar, an aspect which has been also noticed in the
impugned judgment. This is highlighted to show the
prejudice caused to the appellants by the delayed
challenge. We would, subsequently, examine the
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question of acquiescence and its judicial effect in the
context of the present case.

Xxx

38.
In
Ram Chand v. Union of India [Ram Chand
v.
Union of India, (1994) 1 SCC 44] and State of U.P. v.
Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126]
this Court observed that if the statutory authority has not
performed its duty within a reasonable time, it cannot
justify the same by taking the plea that the person who
has been deprived of his rights has not approached the
appropriate forum for relief. If a statutory authority does
not pass any orders and thereby fails to comply with the
statutory mandate within reasonable time, they normally
should not be permitted to take the defence of laches
and delay.

If at all, in such cases, the delay furnishes a
cause of action, which in some cases as elucidated in

Union of India v. Tarsem Singh [Union of India
v. Tarsem
Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765]
may be continuing cause of action.The State being a
virtuous litigant should meet the genuine claims and not
deny them for want of action on their part. However, this
general principle would not apply when, on
consideration of the facts, the court concludes that the
respondent had abandoned his rights, which may be
either express or implied from his conduct.

Abandonment implies intentional act to acknowledge,
as has been held in para 6 of Motilal Padampat Sugar
Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar
Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979
SCC (Tax) 144] Applying this principle of acquiescence
to the precept of delay and laches, this Court in U.P. Jal
Nigam v.Jaswant
Singh [U.P. Jal Nigam v. Jaswant
Singh
, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500]
after referring to several judgments, has accepted the
following elucidation in Halsbury's Laws of England :

(
Jaswant Singh
case [
U.P. Jal Nigam v. Jaswant Singh
,
(2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC
pp. 470-71, paras 1213)
"12. The statement of law has also been summarised in
Halsbury's Laws of England, Para 911,p. 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
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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 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.'

13. In view of the statement of law as summarised
above, the respondents are guilty since the respondents
have acquiesced in accepting the retirement and did not
challenge the same in time. If they would have been
vigilant enough, they could have filed writ petitions as
others did in the matter. Therefore, whenever it appears
that the claimants lost time or whiled it 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. In the present case, if the respondents
would have challenged their retirement being violative
of the provisions of the Act, perhaps the Nigam could
have taken appropriate steps to raise funds so as to
meet the liability but by not asserting their rights the
respondents have allowed time to pass and after a
lapse of couple of years, they have filed writ petitions
claiming the benefit for two years. That will definitely
require the Nigam to raise funds which is going to have
serious financial repercussions on the financial
management of the Nigam. Why should the court come
to the rescue of such persons when they themselves
are guilty of waiver and acquiescence?"

39. Before proceeding further, it is important to clarify
distinction between "acquiescence" and "delay and
laches". Doctrine of acquiescence is an equitable
doctrine which applies when a party having a right
stands by and sees another dealing in a manner
inconsistent with that right, while the act is in progress
and after violation is completed, which conduct reflects
his assent or accord. He cannot afterwards complain.
[See
Prabhakar v. Sericulture Deptt.
, (2015) 15 SCC 1 :

(2016) 2 SCC (L&S) 149. Also, see
Gobinda Ramanuj
Das Mohanta v. Ram Charan Das
, 1925 SCC OnLine
Cal 30 : AIR 1925 Cal 1107] In literal sense, the term
acquiescence means silent assent, tacit consent,
concurrence, or acceptance, [See Vidyavathi Kapoor
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CGHC:26151
Trust v. CIT
, 1991 SCC OnLine Kar 331 : (1992) 194
ITR 584] which denotes conduct that is evidence of an
intention of a party to abandon an equitable right and
also to denote conduct from which another party will be
justified in inferring such an intention.

[See
Krishan Dev
v. Ram Piari
, 1964 SCC OnLine HP 5 : AIR 1964 HP 34]
Acquiescence can be either direct with full knowledge
and express approbation, or indirect where a person
having the right to set aside the action stands by and
sees another dealing in a manner inconsistent with that
right and in spite of the infringement takes no action
mirroring acceptance. [See "Introduction", U.N. Mitra,
Tagore Law Lectures -- Law of Limitation and
Prescription, Vol. I, 14th Edn., 2016.] However,
acquiescence will not apply if lapse of time is of no
importance or consequence.

40. Laches unlike limitation is flexible. However, both
limitation and laches destroy the remedy but not the
right. Laches like acquiescence is based upon equitable
considerations, but laches unlike acquiescence imports
even simple passivity. On the other hand, acquiescence
implies active assent and is based upon the rule of
estoppel in pais. As a form of estoppel, it bars a party
afterwards from complaining of the violation of the right.

Even indirect acquiescence implies almost active
consent, which is not to be inferred by mere silence or
inaction which is involved in laches. Acquiescence in
this manner is quite distinct from delay. Acquiescence
virtually destroys the right of the person. [See

Vidyavathi Kapoor Trust v. CIT
, 1991 SCC OnLine Kar
331 : (1992) 194 ITR 584] Given the aforesaid legal
position, inactive acquiescence on the part of the
respondent can be inferred till the filing of the appeal,
and not for the period post filing of the appeal.
Nevertheless, this acquiescence being in the nature of
estoppel bars the respondent from claiming violation of
the right of fair representation."

9. It is the duty of the court to scrutinize whether such enormous

delay is to be ignored without any justification. Remaining

innocuously oblivious to such delay does not foster the cause of

justice. On the contrary, it brings in injustice, for it is likely to affect

others. Such delay may have impact on others' ripened rights and

may unnecessarily drag others into litigation which in acceptable
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realm of probability, may have been treated to have attained

finality. A court is not expected to give indulgence to such indolent

persons, such delay does not deserve any indulgence and on the

said ground alone this Court deems it appropriate to dismiss this

petition at the very threshold. The doctrine of delay and laches, or

for that matter statutes of limitation are considered to be statutes of

repose and statutes of peace. There must be a lifespan during

which a person must approach the court for their remedy.

Otherwise, there would be unending uncertainty as to the rights

and obligations of the parties.

10.Considering the facts and circumstances of the present case in

light of the judgments passed by the Hon'ble Supreme Court in the

matters of
Chennai Metropolitan Water Supply
(supra),

Rushibhai Jagdishbhai Pathak
(supra) and
Bichitrananda

Behera
(supra), it is quite vivid that the petitioners have

approached this Court after a delay of 9 years and in para 7 of the

writ petition, they have stated that there is no delay in filing the

instant petition. The petitioners utterly failed to explain the delay

caused in filing the instant petition, therefore, in the considered

opinion of this Court, this petition is liable to be and is hereby

dismissed on account of delay and laches. No costs.

Sd/-

(Rakesh Mohan Pandey)
Judge
Rekha