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2019 DIGILAW 267 (MAD)

A. Ramanathan v. Government of Tamil Nadu

2019-01-25

S.MANIKUMAR, SUBRAMONIUM PRASAD

body2019
JUDGMENT : Subramonium Prasad, J. 1. Aggrieved by the dismissal of W.P. No. 4918 of 2018, by a learned single Judge, vide order dated 06.03.2018, the writ petitioner/appellant has filed the instant writ appeal. 2. Father of the writ petitioner/appellant died in harness. He sought for appointment on compassionate grounds. The writ petitioner/appellant was appointed as a Record Clerk on 01.08.1989, with all consequential benefits based on the recommendation of the Headmaster of Government Higher Secondary School, Dharapuram. At that point of time, there was no vacancy in the post of Junior Assistant. He worked as a Record Clerk till 10.12.1995. Then he was considered along with others for appointment as Junior Assistant and by proceedings dated 04.12.1995, the District Educational Officer, Erode appointed the writ petitioner/appellant as Junior Assistant and posted him at Government High School, Bellampatti. After completion of one year from the date of appointment as Junior Assistant, the writ petitioner/appellant's services ought to have been regularised. However, his appointment was not regularised. The writ petitioner/appellant thereafter filed a writ petition bearing W.P. No. 7527 of 2008, seeking a mandamus to consider his case for regularisation to the post of Junior Assistant. On 27.03.2008, the said writ petition was allowed and finally by an order dated 13.02.2009 in G.O. Ms. No. 56, School Education (S-1) Department, the writ petitioner/appellant's services were regularised on 11.12.1995. The writ petitioner/appellant thereafter, was promoted as an Assistant on 04.10.2010 and was posted at the office of the Assistant Elementary Educational Officer, Kundadam. Lateron, he was promoted as Desk Superintendent on 28.02.2014 and posted at the office of District Elementary Educational Officer, Chennai. Thereafter, he was posted as Superintendent by an order dated 30.08.2016 and was posted at the office of the Assistant Elementary Educational Officer, Kangeyam. At the time when the writ petition was filed, he was serving in the office of the Assistant Elementary Educational Officer, Kundadam, Tiruppur District. 3. The writ petitioner/appellant filed WP. No. 4918 of 2018 in the year 2018, stating that his services ought to have been regularised from 01.08.1989 i.e. from the date he was appointed as Record Clerk. 4. Admittedly, writ petitioner/appellant was regularised as Junior Assistant from 11.12.1995 by an order dated 13.02.2009. At that time the writ petitioner/appellant chose not to protest. On the other hand, he continued working and was promoted. 4. Admittedly, writ petitioner/appellant was regularised as Junior Assistant from 11.12.1995 by an order dated 13.02.2009. At that time the writ petitioner/appellant chose not to protest. On the other hand, he continued working and was promoted. After nine years, the writ petitioner/appellant has chosen to file the instant writ petition. There is no reason forthcoming as to why the writ petitioner/appellant kept quiet for a period of nine years. The Hon'ble Supreme Court, has time and again held that the person seeking grant of relief under Article 226 of the Constitution of India, even if it is against the State, is required to satisfy the High Court that he is not guilty of laches or undue delay in approaching the Court for the appropriate relief. 5. What is "reasonable time", has not been explained in any of the enactments. Reasonable time depends upon the facts and circumstances of each case. (i) The words "reasonable time", as explained in Veerayeeammal v. Seeniammal, reported in 2002 (1) SCC 134 : ( AIR 2001 SC 2920 ), at Paragraph 13, is as follows: "13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean: "A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea." 6. Reference can also be made to a few decisions of the Supreme Court, where inordinate delay and laches, on the part of the litigant in approaching the Court has been disapproved: (i) In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006 , the Hon'ble Supreme Court held that unreasonable delay denies the petitioner, the discretionary extraordinary remedy of mandamus, certiorari or any other relief. (ii) In State of M.P. v. Nandlal Jaismal, reported in 1986 (4) SCC 566 : ( AIR 1987 SC 251 , para 23), the Hon'ble Supreme Court, at Paragraph 24, held as follows: "24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal..........Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it." (iii) In State of Maharashtra v. Digambar reported in AIR 1995 SC 1991 , the Hon'ble Supreme Court, considered a case, where compensation for the acquired land was claimed belatedly and at Paragraphs 12, 18 and 21, held as follows: "12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 18. 18. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus: "Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." 21. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy." 21. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily." (iv) In State of Rajasthan v. D.R. Laxmi, reported in 1996 (6) SCC 445 : (1996 AIR SCW 3970), the Hon'ble Supreme Court observed that, though the order may be void, if the party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. (v) In Chairman, U.P. Jal Nigam and another v. Jaswant Singh reported in AIR 2007 SC 924 , the Hon'ble Supreme Court, after considering a catena of decisions on the aspect of delay, at Paragraph 13, held as follows: "13. .......Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted." (vi) In S.S. Balu v. State of Kerala (2009) 2 SCC 479 , wherein at paragraph No. 17 : ( AIR 2009 SC 1994 , para 18), the Hon'ble Supreme Court held as follows: "17. It is also well-settled principle of law that "delay defeats equity". The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. It is also well-settled principle of law that "delay defeats equity". The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In NDMC v. Pan Singh this Court held: (SCC p. 283, para 16): ( AIR 2007 SC 1365 , at p. 1367, para 16) "16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction." 7. In view of the abovementioned consistent ruling by the Court and in view of the fact that no reason has been given by the writ petitioner/appellant, as to why he kept quiet for such a long time, the writ petitioner/appellant is not entitled to the relief under Article 226 of the Constitution of India. In any event the writ petitioner/appellant was appointed as a Junior Assistant only on 04.12.1995. There was no post of Junior Assistant vacant prior to that. In any event the writ petitioner/appellant was appointed as a Junior Assistant only on 04.12.1995. There was no post of Junior Assistant vacant prior to that. He cannot in any case claim regularisation from 28.07.1989, when he was appointed as a Record Clerk. The writ Appeal is dismissed. No costs.