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2009 DIGILAW 110 (CHH)

CHAIN SINGH PENDRE v. STATE OF C. G.

2009-03-27

SATISH K.AGNIHOTRI

body2009
ORDER 1. The petitioner, by this petition, seeks the following reliefs: B. That, the Hon'ble Court may kindly be pleased to direct the respondents authorities to give promotion from the year 1991 instead of 1997 on the post of Assistant Commissioner with all consequential benefits along with suitable interest. C. That, the Hon'ble Court may kindly be pleased to direct the respondents authorities to give arrears of salary from the year 1991 with interest. 2. The brief facts, in nutshell, as projected by the petitioner are that, the petitioner was appointed on the post of District Organizer by order dated 5-91981 (Annexure P/l). Thereafter, the department prepared gradation list of District Organizer by order dated 20-12-1990 (Annexure P/2) in which the name of the petitioner finds place at Srl.No.27. By order dated 26-11-1991 (Annexure P/3) the respondents promoted junior employees to the petitioner on the post of Assistant Commissioner/Deputy Director, after constituting a departmental promotion committee. The name of the petitioner was not added in the said list. Against the said promotion order given to the junior employees, the petitioner made several representations on 5-1-1991, 15-1-1992, 20-2-1992, 2-3-1993, 26-3-1993 and 15-3-1999 for promotion on the post of Assistant Commissioner. However, the petitioner was promoted on the post of Assistant Commissioner in the year 1997. The petitioner had objected the same as he was entitled for the promotion on the said post since 1991. Thereafter, the petitioner made an application on 276-2008 and 14.8.2008 under the provisions of Right to Information Act, 2005 before the respondent-authorities for furnishing information regarding departmental promotion committee held in the year 1991. The respondent-authorities have given information to the petitioner, stating that the petitioner had not fulfilled the requisite criteria for promotion to the post of Assistant Commissioner. The respondent., authorities have communicated to the petitioner regarding adverse remarks made in his confidential report, mentioned in the year 1988-1989. 3. Learned counsel appearing for the petitioner submits that the respondents have not taken any action on the representations made by the petitioner and the action of the respondent -authorities in not considering the name of the petitioner for promotion on the post of Assistant Commissioner in the year 1991 and considering the same in the year 1997, is violative to the fundamental rights. 4. 4. The cause of action arose in the year 1991, the petitioner has slept over his right when according to the petitioner he has been kept on making representations. It is well settled that more than one representation cannot arrest the limitation, as even if, the representation is not considered and order is not passed within a reasonable period of six months, the petitioner may approach the High Court. The petitioner has not done the needful and waited for 18 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 delay and laches, 5. A seven Judges of Hon'ble Supreme Court in S. S. Rathore Vs. State of Madhya Pradesh I , while considering the limitation in filing an application before the Tribunal against the order of dismissal observed as under: "22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation." 6. Hon'ble Supreme Court in C. Jacob Vs. Director of Geology & Mining & Anr.2, while considering. as to how the representation made by an employee has to be dealt with by the State observed as under : "7. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representation with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim." 7. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representation with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim." 7. 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. 8. In the matter of R.N Bose Vs. Union of India3, it was observed that no relief can be given to the petitioner who without any reasonable explanation approaches the Court after inordinate delay. 9. In the matter of State of MP Vs. Nandlal4, it was observed 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. 10. The Supreme Court in the matter of UP Jal Nigam and another Vs. Jashwant Singh and another5, 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 the matter of State of Punjab and another Vs. Balkaran Singh, referred with approval the decision inS. S. Rathorel (supra) and observed as under: "22. According to us, the suit is also barred by acquiescence and estoppel. " 11. On laches and delay in agitating the grievances before the Court, the Hon'ble Supreme Court, in the matter of State of Punjab and another Vs. Balkaran Singh, referred with approval the decision inS. S. Rathorel (supra) and 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 court 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. Hon'ble the Supreme Court in the matter of Tridip Kumar Dingal and others Vs. State of West Bengal and others7 where the appellants took 55'9 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." 13. In Tridip Kumar Dingal and others7 (supra), the Hon'ble supreme Court also observed as under: "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 making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this 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 MP. Vs. Bhailal Bhai, Moon Mills Ltd. Vs. Industrial Court and Bhoop Singh Vs. Union of India). The underlying object of this 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 MP. Vs. Bhailal Bhai, Moon Mills Ltd. Vs. Industrial Court and Bhoop Singh Vs. Union of India). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand Vs. HB. Munshi, Durga Prasad Vs. Chief Controller of Imports & Exports and Rabindranath Bose Vs. Union of India). 14. In Tridip Kumar Dingal and others7 (supra) it was further observed as under: "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". 15. In the matter of Yunus (Baboobhai) A Hamid Padvekar Vs. State of Maharashtra8 the Supreme Court, referred with approval the decisions in R.N Bose3 (supra) & State of M.P. Vs. Nandlal4 (supra), and 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 High 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." 8. JT 2009(3) SC 487 16. In view of the aforesaid discussion, the petitioner is not entitled to any relief at this stage after a period of 18 years. Thus, the writ petition is dismissed. Petition Dismissed.