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2017 DIGILAW 60 (MEG)

Liladhar Papanai v. Union of India

2017-08-22

VED PRAKASH VAISH

body2017
JUDGMENT : V.P. Vaish, J. By way of the present petition, the petitioner prays for setting aside the communication dated 2nd September, 2014 issued by the respondents, whereby the petitioner was held not entitled to the similar benefits extended/granted to the rank of Subedar Major. The petitioner also prayed that he be granted the reliefs as has been granted to persons who were parties before this Court in WA No. 9/2006 and other connected matters decided on 14th August, 2007. 2. Briefly, the facts as stated in the petition are that the petitioner joined the services in Assam Rifles on 27th July, 1960 as a recruit boy and had rendered his services till 31st July, 1996. The petitioner retired from services on completion of 36 years of service, after attaining the age of 55 years. 3. In the year 1995, the petitioner was promoted to the rank of Subedar. It is stated that the petitioner was made to sign an undertaking for retirement from Assam Rifles on attaining the age of 55 years. It is stated that the petitioner was placed in reserve, for promotion to the post of Subedar Major, whereas his colleagues were promoted to the said rank of Subedar Major in the year 1992 and his juniors were promoted in the year 1994. 4. It is further stated that the service of the petitioner was reviewed upon completing 50 years of age and that he was allowed to continue in service thereafter. The petitioner alleged that he was forced to go on retirement with effect from 31st July, 1996 on attaining the age of 55 years. It is stated that the age of superannuation in Assam Rifles was enhanced to 58 years, and later by another amendment, was enhanced to 60 years. The petitioner alleged that he was forced to retire on attaining the age of 55 years, though he still had five years of service left. 5. It is stated that the age of superannuation in Assam Rifles was enhanced to 58 years, and later by another amendment, was enhanced to 60 years. The petitioner alleged that he was forced to retire on attaining the age of 55 years, though he still had five years of service left. 5. It is further stated that some other persons who were forced to retire on attaining the age of 55 years had filed petitions before this Court and that this Court had quashed the order of premature retirement and also directed the respondents to either retain them in service, till they actually attain the age of 60 years, or in case where reinstatement was not feasible, the retired persons should be deemed to have continued in service till they attained the aged of 60 years and the authorities were directed to pay salaries and allowances to such retired persons till they would have attained the age of superannuation. 6. The petitioner contended that his case is squarely covered by the judgment dated 14th August, 2007 passed by this Court in WA No. 9/2006 and other connected matters. 7. The petitioner further contended that had the respondents properly implemented the law and the policy decision of the Government of India, to enhance the retirement age of Government employees, including Assam Rifles persons, to 60 years, then the petitioner would not only have served in the Assam Rifles for a period of five years more, but that he would have also attained his promotion to the rank of Subedar Major. It is argued on behalf of the petitioner that by not allowing him to continue in his services, and prematurely retiring him at the age of 55 years, the respondents have denied him an opportunity to earn his livelihood and also to work for longer period. 8. The petitioner stated that he was entitled to serve up to the age of 60 years as per the amendment brought about in the relevant Fundamental Rule 56. 9. The petitioner stated that upon retiring him in such a manner, he had represented to the respondents, but the respondents by an order dated 2nd September, 2014 inform the petitioner that the service benefits had been extended to the rank of Subedar Major and not to the rank of Subedar. 9. The petitioner stated that upon retiring him in such a manner, he had represented to the respondents, but the respondents by an order dated 2nd September, 2014 inform the petitioner that the service benefits had been extended to the rank of Subedar Major and not to the rank of Subedar. The petitioner brought to the notice of the respondents the judgment passed by this Court in WA No. 9/2006, the respondents have not taken any positive step to afford relief to the petitioner. The petitioner contends that he is suffering due to the illegalities being committed by the respondents. 10. It is stated that while implementing the recommendation of the Fifty Pay Commission, the Director General Assam Rifles vide communication dated 28th July, 1999 had issued an order enhancing the age of retirement of Assam Rifles JCO to 60 years. The petitioner thus, contends that he is entitled to have served the Assam Rifles till he attain the age of 60 years, since he was holding the rank of Subedar which is also classified as JCO, but since he was retired prior to his completion of 60 years age, [thus apparently, he was retired prior to his actual date of superannuation] which in similar cases have been held to be illegal by this Court. 11. The petitioner is thus aggrieved by the rejection of his claims by the respondents vide order dated 2nd September, 2014. 12. The petition is opposed by the respondents by filing counter affidavit. It is stated that the petitioner had himself sought retiring pension before attaining the age of superannuation, which was 58 years at that time in the rank of Subedar. Rule 48 (1)(a) of CCS (Pension) Rules, 1972 provides that at any time, a Government servant who has completed thirty years of qualifying service, may retire from service. Hence, the petitioner was not supposed to retire at the age of superannuation i.e. 58 years. 13. It is further stated that prior to July 1999, Subedar Major used to retire from service on completion of 4/6 years of service as Subedar Major, or on attaining 55/57 years of age, whichever was earlier. Hence, the petitioner was not supposed to retire at the age of superannuation i.e. 58 years. 13. It is further stated that prior to July 1999, Subedar Major used to retire from service on completion of 4/6 years of service as Subedar Major, or on attaining 55/57 years of age, whichever was earlier. Subedars used to execute an undertaking before their promotion to the rank of Subedar Major that they were willing for the promotion to the rank of Subedar Major and that they will retire on completion of 4/6 years of service as Subedar Major, or on attaining 55/57 years of age, whichever was earlier. 14. The respondents further stated that subsequently, few such Subedar Majors had filed writ petitions challenging the premature i.e. before the age of superannuation. This Court vide judgment dated 14th August, 2007 had allowed their petitions by setting aside their compulsory retirement orders, and the affected Subedar Majors were extended benefits of service and pension till date of such superannuation. 15. The respondents contended that the petitioner had neither executed any undertaking, nor had he been promoted to the rank of Subedar Major, but that he had voluntarily sought retiring pension under Rule 48(1)(a) of CCS (Pension) Rules, 1972 in the rank of Subedar after only 55 years. The respondents further stated that the records pertaining to the sanction of his retiring pension dated 30th August, 1995 have been destroyed vide destruction certificate dated 24th August, 2004 and that the present writ petition is the result of misconception and misrepresentation of facts. 16. The respondents further contended that the petitioner has approached this Court after a lapse of 19 years which is unexplained and abnormal. The petition is thus barred by delay and laches and deserves to be dismissed. 17. I have heard learned counsel for the parties and perused the documents and pleadings on record. 18. It is not disputed that the petitioner had retired from the rank of Subedar in July, 1996. He had filed the present petition in the year 2015, i.e. almost 19 years after the petitioner retired from service. The petition suffers from delay and laches. 19. 18. It is not disputed that the petitioner had retired from the rank of Subedar in July, 1996. He had filed the present petition in the year 2015, i.e. almost 19 years after the petitioner retired from service. The petition suffers from delay and laches. 19. Considering the aforesaid fact that the petitioner had retired way back in the year 1996, and had filed the present writ petition 19 years thereafter, seeking relief which was granted to the rank of Subedar Major and not to Subedars, on the basis of the judgment rendered in the year 2007, the same deserves to be dismissed on account of delay and laches. 20. The issue regarding delay in invoking extra-ordinary jurisdiction was considered by the Hon'ble Supreme Court in the case of 'U.P. Jal Nigam and Another v. Jaswant Singh and Another', (2006) 11 SCC 464 . It was a case in which certain employees raised the issue that they were not liable to be retired at the age of 58 years, but instead, should be permitted to continue in service till they attain the age of 60 years. They were still in service when the writ petitions were filed. The writ petitions were ultimately allowed. Placing reliance upon the judgment, some of the employees, who already stood retired, filed writ petitions claiming the same benefit. The writ petitions were allowed by the High Court in terms of its earlier judgment. The judgment of the High Court was impugned before the Hon'ble Supreme Court, wherein while referring to earlier judgments of the Hon'ble Supreme Court in the case of 'M/s Rup Diamonds and Others v. Union of India', (1989) 2 SCC 356 ; 'State of Karnataka and Others v. S.M. Kotrayya and Others', (1996) 6 SCC 267 ; 'Jagdish Lal and Others v. State of Haryana and Others', (1997) 6 SCC 538 and 'Government of West Bengal v. Tarun K. Roy and Others', (2004) 1 SCC 347 , it was opined that the persons who approached the Court at a belated stage, placing reliance upon an order passed some other case earlier, can be denied the discretionary relief on account of delay and laches. The relevant paragraphs thereof are extracted below:- "12. The relevant paragraphs thereof are extracted below:- "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 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? 16. Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years? salary and increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached the court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for their retirement, those persons should be allowed to stand to benefit and not others...." 21. In a recent judgment in 'State of Uttaranchal and Another v. Shiv Charan Singh Bhandari and Others, (2013) 12 SCC 179 , the Hon'ble Supreme Court while considering the issue regarding delay and laches and referring to earlier judgment on the issue, opined that repeated representations made will not keep the issue alive. A stale or a dead issue/dispute cannot be revived even if such a representation has either been decided by the authority or being decided by getting a direction from the Court, as the issue regarding delay and laches is to be decided with reference to the original cause of action, and not with reference any such order passed. 22. In the case of 'Tukarm Kana Joshi and Ors. v. M.I.D.C. and Ors, AIR 2013 SC 565 it has been ruled that:- "10......Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience." 23. Recently, in the case of 'Chennai Metropolitan Water Supply and Sewerage Board and Others v. T.T. Murali Babu, (2014) 4 SCC 108 , it has been held as under:- "16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of times" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis." 24. Delay and laches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India, in a situation of that nature, will not be attracted as it is well known that law leans in favour of those who are alert and vigilant. Even equality has to be claimed at the right juncture and not on expiry of reasonable time. Article 14 of the Constitution of India, in a situation of that nature, will not be attracted as it is well known that law leans in favour of those who are alert and vigilant. Even equality has to be claimed at the right juncture and not on expiry of reasonable time. Even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. Anyone who sleeps over his rights is bound to suffer. An employee who sleeps like Rip Van Winkle and got up from slumber at his own leisure, deserves to be denied the relief on account of delay and laches. 25. In the present case, the petitioner has failed to show a cogent reason to approach this Court after an exorbitant delay of 19 years. A perusal of the petition also did not justify this enormous delay. A Court is not expected to give indulgence to such indolent persons who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. Anyone who sleeps over his right is bound to suffer. 26. In the case of 'State of T.N. v. Seshachalam' (2007) 10 SCC 137 , the Hon'ble Supreme Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus:- "16. Some of the respondents might have filed representations but filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant......" 27. Apart from the delay and laches, on merit also the petition deserves to be dismissed. According to the respondents, there was no provision for taking an undertaking for retirement at the age of 55 years at the time of promotion to the rank of Subedar. The petitioner had not executed any undertaking. Apart from the delay and laches, on merit also the petition deserves to be dismissed. According to the respondents, there was no provision for taking an undertaking for retirement at the age of 55 years at the time of promotion to the rank of Subedar. The petitioner had not executed any undertaking. Promotion to the rank of Subedar Major is based on merit, seniority and vacancy, subject to fulfillment of criteria for promotion. The petitioner in the petition has admitted that his juniors were promoted to the rank of Subedar Major in the year 1994. It reflects that the petitioner was not promoted to the rank of Subedar Major, as he did not fulfill the criteria of promotion to the rank of Subedar Major. 28. The findings in the judgment rendered in WA No. 9 of 2006 dated 14th August, 2007 were only for those Subedar Majors who had retired from service on completion of the tenure of 4/6 years as Subedar Majors, or 55/57 years of age, whichever is earlier. In this case, the petitioner never executed any undertaking nor was he promoted to the rank of Subedar Major, but he had sought voluntary retirement under Rule 48 (1)(a) of the CCS (Pension) Rules, 1972 after only 55 years of age and therefore, he is not entitled to claim benefits of the judgment dated 14th August, 2007. 29. Rule 48 (1)(a) of the CCS (Pension) Rules, 1972 provides that at any time, a Government servant who has completed 30 years of qualifying service, may retire from service. The retirement of the petitioner does not fall under the category of premature retirement, as was contended by the erstwhile Assam Rifles employees who were superannuated at the age of 58 years till May, 1998; instead, the petitioner chose to retire under Rule 48 (1)(a) of the CCS (Pension) Rules, 1972. 30. Erstwhile Assam Rifles employees were superannuated at the age of 58 years till 13th May, 1998, and at the age of 60 years, after the enhancement of the age of superannuation by the Government vide O.M. dated 14th May, 1998. The retirement at the age of 58/60 years is not automatic but is subject to the recommendation by the Service Review Board constituted by the concerned department before completion of 30 years service, or on attaining 55 years of age, whichever is earlier. The retirement at the age of 58/60 years is not automatic but is subject to the recommendation by the Service Review Board constituted by the concerned department before completion of 30 years service, or on attaining 55 years of age, whichever is earlier. However, as it is evident that the petitioner had completed 36 years of service at the time of retirement, he could not have continued in service till attaining the actual age of superannuation i.e. 58/60 years, but instead had sought retirement under Rule 48 (1)(a) of the CCS (Pension) Rules, 1972 at the age of 55 years. 31. The petitioner had made representations with the respondents in the year 2008, 2013 and 2014 while the pension records had been destroyed in the year 2004 as stated by the respondents. The petitioner has been apprised of the factual and rule position in response to his representation vide letter dated 2nd September, 2014. The service benefits which were extended to the Subedar Majors as a consequence of judgment dated 14th August, 2007 cannot be extended to a Subedar, which in this case is the petitioner. The petitioner was allowed to continue in service beyond 30 years and has not been retired by the Government, moreover, he had retired under the provisions of Rule 48 (1)(a) of the CCS (Pension) Rules, 1972 and therefore, he cannot claim benefit of the judgment dated 14th August, 2007. 32. In the light of the aforesaid discussion, I do not find any merit in the present petition. The petition deserves to be dismissed and the same is hereby dismissed. No order as to costs.