Chattisgarh High Court

Smt.Shalini Dalela vs State Of Chhattisgarh And Ors on 12 July, 2024

Neutral Citation
2024:CGHC:25017
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 966 of 2014
Smt.Shalini Dalela W/o Prashant Shrivastava Aged About 43 Years
Working As Project Officer, Woman And Child Development
Department, Training Centre, Bilaspur, R/o L-3, Vidhya Nagar,
Bilaspur P.S. Tarbahar, Distt. Bilaspur C.G., Chhattisgarh
---- Petitioner
Versus
1. State Of ChhattisgarhThrough Secretary, Department Of Woman
And Child Development, Mahanadi Bhawan, P.S. Rakhi, Distt.
Raipur C.G., Chhattisgarh
2. Commissioner Director Department Of Woman And Child
Development, Directorate, Indrawati Bhawan, P.S. Rakhi, Distt.
Raipur C.G., District : Raipur, Chhattisgarh
3. Deputy Director Establishment, Director Department Of Woman
And Child Development, Directorate, Indrawati Bhawan, P.S.
Rakhi, Distt. Raipur C.G., District : Raipur, Chhattisgarh
4. Public Service Commission, C.G. Through Its Secretary, Raipur,
Distt. Raipur C.G., District : Raipur, Chhattisgarh
5. Anand Kumar Tiwari S/o G.N. Tiwari Aged About 45 Years Working
As Assistant Director, Department Of Woman And Child
Development, Directorate Raipur, Distt. Raipur C.G., District :
Raipur, Chhattisgarh
6. Abhay Dewangan S/o Shri Dewangan Aged About 47 Years
Posted As Assistant Director, Department Of Woman And Child
Development, Directorate Raipur, Distt. Raipur C.G., District :
Raipur, Chhattisgarh
---- Respondents

(Cause-title taken from Case Information System)

For Petitioner : Mr. Sourabh Sahu, Advocate
For State : Mr. Satish Gupta, G.A. along with
Ms. Nupoor Sonkar, Panel Lawyer
For Respondent No.4 : Mr. Anuroop Panda, Advocate

Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
12.07.2024
Heard.

1. The petitioner has filed this petition seeking the following relief(s):-

Neutral Citation
2024:CGHC:25017 -2-

"10.1 That, the Hon'ble Court may kindly be
pleased to :

(a) direct the respondent/State to end the probation
of the petitioner w.e.f. 04.05.1998.

(b) That the respondent/state may kindly be
directed to consider the case of promotion of the
petitioner on the post of Assistant Director Mahila
Avam Bal Vikas w.e.f. the date of respondent No.5
was promoted on that post in the year 2005 and
accordingly to fix the seniority and place of the
petitioner in the gradation list of Assistant Directors,
and to grant her further promotions accordingly.

(c) In the alternative respondent No.1-4 may kindly
be directed to grant promotion to the petitioner at
par and from the same date from which respondent
No.6 Abhay Dewangan has been granted
promotion on the post of Assistant Director in 2013
w.e.f. 08.07.2013 and to fix her seniority on the
post of Assistant Director accordingly.

10.2 Any other relief which this Hon'ble Court
deems fit under the facts and circumstances of the
case including the cost of the petition.

10.3 That, this Hon'ble Court may kindly be
pleased to issue appropriate writ/order to quash
the order dated 24.09.2014, bearing No.F-1-
33/2007/MBAVI/50, passed by respondent No.1"

2. The facts of the present case are that the petitioner was appointed

to the post of Project Officer in Mahila Avam Bal Vikas Vibhag on

23.04.1996. She joined her services on 04.05.1996 on probation for a

period of two years. On 26.09.2000, the petitioner made a representation

before the respondent authorities for confirmation of her services. An

order was passed in this regard on 12.12.2005 and the services of the

petitioner were confirmed from 27.07.2002. Thereafter, the petitioner

moved a fresh representation on 06.06.2006 before the respondent

authorities to the effect that her services ought to have been regularized

on completion of two years probation period i.e. on 04.05.1998 but her

services were confirmed on 27.07.2002 and the annual increment was
Neutral Citation
2024:CGHC:25017
granted from the year 2003. It is further pleaded that in the year 2005,

some of the project officers were promoted to the post of Assistant

Director but the name of the petitioner was not taken into consideration.

Thereafter, Writ Petition No. 3984 of 2007 was filed claiming therein

annual increment, the benefit of seniority, promotion, confirmation of

probation immediately after completion of two years and consequential

benefits. That petition was disposed of on 28.03.2008 granting liberty to

the petitioner to make a representation before the respondent authorities

and the direction was issued to the concerned authority to decide the

representation within a stipulated time. The petitioner submitted her

representation on 02.04.2008 and for a personal hearing, she was called

on 20.05.2008 and 27.05.2008. On 26.06.2008, an order was passed by

respondent No.1 but according to the petitioner, her representation was

not considered properly. Thereafter, the petitioner filed a Contempt

Petition No.175 of 2008 which was disposed of on 20.01.2010 observing

that since the representation has already been decided, no case is made

out. On 01.02.2011, a letter was issued to the petitioner granting her a

personal hearing on her representation where she appeared on

06.01.2012 and 18.02.2013 and an order was passed on 24.09.2014.

The seniority list of the project officers was published with effect from

01.04.2012. Again the Departmental Promotion Committee was

convened in the month of July, 2013 and the name of the petitioner was

not considered thus, the petitioner has preferred this petition seeking the

reliefs as mentioned above.

3. Mr. Sahu, learned counsel appearing for the petitioner argued that

the petitioner was entitled to get promotion to the post of Assistant
Neutral Citation
2024:CGHC:25017 -4-

Director in the department in the year 2005 when similarly situated

project officers were promoted to the post of Assistant Director. He

further argued that again in the year 2013, her name was not considered.

He also argued that earlier, a writ petition was filed and the reliefs were

sought concerning confirmation of services after completion of a

probation period of two years, grant of seniority, promotion, grant of

annual increment from the date of appointment and its arrears and the

other reliefs. He further submitted that the representation made by the

petitioner pursuant to the order dated 28.03.2008 was decided by the

respondent authorities on 24.09.2014 and a copy of that order was

placed along with the return filed by the State. He also submitted that the

claim of the petitioner has not been redressed. He further stated that

certain allegations were made against the petitioner and those

allegations were duly inquired but nothing relevant was found. He also

stated that the Departmental Promotion Committee had found the

petitioner eligible for promotion and later on, the petitioner was promoted

to the post of Assistant Director vide order dated 22.07.2002 whereas

her name was considered in the Departmental Promotion Committee

convened in the year 2007. He referred to the minutes of the meeting of

the Departmental Promotion Committee where it is observed that no

adverse remarks were made against the petitioner and the annual

confidential report was not communicated to her. He further contended

that the petitioner was entitled to get a promotion in the year 2007 itself.

Thus, he prayed that a direction may be issued to the respondent

authorities to consider the claim of the petitioner for promotion from the

year 2007 and further to make payment of arrears of salary.

Neutral Citation
2024:CGHC:25017
4. On the other hand, Mr. Gupta, the learned Government Advocate

appearing for the State as well as Mr. Panda, learned counsel appearing

for respondent No. 4 would oppose the submissions made by Mr. Sahu.

They submitted that the petitioner could not complete two years of

probation period successfully as there were adverse remarks against

her. They further submitted that the probation period of the petitioner was

not found satisfactory by the Departmental Promotion Committee,

therefore, her services were confirmed from 27.07.2002. They also

submitted that the petitioner has not challenged the order dated

26.06.2008 whereby her representation was rejected. They further

argued that in WPS No.3984 of 2007, the petitioner challenged the order

dated 27.07.2002 whereby her services were confirmed, a direction to

respondent No.1 to issue a fresh order of revocation of the probation with

effect from 04.05.1998, grant of annual increment with effect from

04.05.1998 instead of 22.07.2002, arrears, reckoning of seniority, and

grant of promotion and release of withheld salary from March, 2007.

They also argued that the petition was disposed of on 28.03.2008

wherein the petitioner pressed only one relief concerning the completion

of her probation period on 04.05.1998 and other reliefs and grounds

were not raised by the petitioner and the direction was issued by this

Court to the respondent authorities to consider the grievance of the

petitioner. They further contended that the petitioner has waived her right

to seek other reliefs which were already sought in the earlier writ petition.

They also contended that the principle of waiver and acquiescence

would apply in toto in the present case. They further stated that again the

representation of the petitioner was rejected vide order dated 26.06.2008

and that order has also not been challenged by the petitioner in the
Neutral Citation
2024:CGHC:25017 -6-

present petition whereby the claim of the petitioner was thoroughly

considered concerning grant of annual increment, seniority, promotion

etc. They also stated that the claim of the petitioner concerning

promotion was turned down by the department wherein it is observed by

the authority that though the representation of the petitioner was rejected

by the State on merits even thereafter the petitioner made repeated

representations including the review application and therefore, an

explanation was sought from the petitioner and again a representation

was made on 01.02.2011. In para 6 of the order dated 24.09.2014, it is

held that in the DPC held in the year 2013, the name of the petitioner

was considered but she was not found suitable by the Departmental

Promotion Committee. Even in the year 2005, her name was within the

zone of consideration but she was not found fit. In para 8, it is observed

by the authority that there is no improvement in the functioning of the

petitioner, she used to disobey the orders of superior authorities and she

made representations raising similar grievances. They further contended

that as per the averments made in the petition, the petitioner was entitled

to get a promotion in the year 2005 and thereafter in the year 2013 but

the claim of the promotion was raised in the earlier petition which was

not pressed and no representation in this regard was made before the

State authorities and therefore, after a lapse of nine years, the

petitioner's claim with regard to seniority and promotion is stale.

Therefore, the present petition is liable to be dismissed.

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

perused the documents placed on the record.

6. Admittedly, the petitioner was appointed to the post of Project
Neutral Citation
2024:CGHC:25017
Officer under the Mahila Avam Bal Vikas Vibhag and her services were

regularized on 22.07.2002. Initially, the petitioner was appointed on

probation for a period of two years and when her services were not

confirmed, she made a representation but from a perusal of the order

dated 26.06.2008, certain adverse remarks appear against the petitioner,

therefore, her services were not confirmed. Undisputedly, the petitioner

has not challenged the order dated 26.06.2008 whereas that order was

passed pursuant to the order passed in WPS No.3984 of 2007.

7. WPS No. 3984 of 2007 was filed and the following reliefs were

sought:-

"(1) That this Hon'ble Court may kindly be pleased to
issue a writ in the nature of mandamus commanding
the respondents to produce the entire records relating
to the probation, promotion as well as withholding of the
petitioner's salary for kind perusal of this Court;
(2) That this Hon'ble Court may kindly be pleased to
issue a writ in the nature of certiorari for quashing the
impugned order Annexure P/1;

(3) That this Hon'ble Court may kindly be pleased to
issue a writ in the nature of mandamus commanding
the respondent No.1 to issue fresh order of revocation
of probation w.e.f. 04.05.1998 i.e. the date on which the
petitioner completed two years probation period;
(4) That the respondents may kindly be directed to
grant benefit of annual increment w.e.f. 04.05.1998
instead of 22.07.2002 and arrears of increments and
other consequential benefits may kindly be granted to
the petitioner.

(5) That the respondent No.1 may kindly be directed to
promote the petitioner on the next higher post from the
date on which junior to her has been promoted and
assigned the seniority on the appropriate place together
with all consequential benefits;

(6) That this Hon'ble Court may kindly be pleased to
command the respondents to forthwith release the
withheld salary for the period from March 2007 till date;
(7) Any other relief which this Hon'ble Court may deem
fit and proper may also be passed in favour of the
Neutral Citation
2024:CGHC:25017 -8-

petitioner."

8. The order dated 28.03.2008 would reveal that the petitioner

pressed only the issue of the confirmation of her services after the

completion of the probation period of two years but the other reliefs were

not pressed or raised before this Court, therefore, a direction was given

to the State authorities to consider the claim of the petitioner with regard

to probation only and the same was rejected by the authority vide order

dated 26.06.2008.

9. The petitioner was entitled to get a promotion in the year 2005 as

per the pleading made in the present petition and thereafter in the year

2013. With regard to promotion in the year 2005 as claimed by the

petitioner, the petition is time-barred. Service-related claims cannot be

raised after the lapse of an inordinate period as held by the Hon'ble

Supreme Court in the catena of judgments.

10. There are certain observations in the note-sheet but no specific

order was issued by any of the authorities in favour of the petitioner,

therefore, the note-sheet would not confer any right in favour of the

petitioner.

11. With regard to delay in claiming seniority and promotion, 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 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
Neutral Citation
2024:CGHC:25017
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.

12. 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 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
Neutral Citation
2024:CGHC:25017 -10-

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."

13. The law with regard to waiver and acquiescence is no more res

integra. 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 passages from
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
Neutral Citation
2024:CGHC:25017
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 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
Neutral Citation
2024:CGHC:25017 -12-

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 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
Neutral Citation
2024:CGHC:25017
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 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.

Neutral Citation
2024:CGHC:25017 -14-

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 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 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
Neutral Citation
2024:CGHC:25017
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."

14. Admittedly, the petitioner has not challenged the initial order

passed by the respondents dated 26.06.2008 and in the earlier round of

litigation, she did not press the issue of promotion, seniority and grant of

arrears of salary, therefore, in this petition, she cannot be permitted to

raise those reliefs which were sought in the earlier writ petition.

15. Taking into consideration the above-stated facts and the law
laid

down by
the Hon'ble Supreme Court in the matters of
Chennai

Metropolitan Water Supply
(supra),
Rushibhai Jagdishbhai Pathak

(supra) and
Bichitrananda Behera
(supra), no case is made out for

interference. Consequently, the present petition fails and is hereby

dismissed. No cost(s). Sd/-

(Rakesh Mohan Pandey)
Judge
Rekha