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2024 DIGILAW 931 (GUJ)

Shabdad Shermamd Makrani v. State of Gujarat

2024-04-18

NIKHIL S.KARIEL

body2024
ORDER : 1. Heard learned advocate Mr.Abhisst Thaker on behalf of the petitioner and learned Assistant Government Pleader Ms.Pooja Ashar on behalf of the respondent – State. 2. By way of this petition, the petitioner has prayed for the following reliefs:- “(A) Your Lordships be pleased to issue writ of Mandamus or any other appropriate writ order or direction to the respondents to grant the deemed date of promotion from the post of beat guard-III to the post of Forester-III with consequential benefits; (B) Pending hearing and final disposal of this petition, the Hon’ble Court be pleased to direct the respondents decide the representation of the petitioner; (C) Your Lordships may be pleased to pass such other and further order which deems to fit, just and proper in the interest of justice.” 3. It is the case of the petitioner that the petitioner had been appointed with the respondent – State as a Beat Guard, Class-III vide order dated 09.02.1973 and was promoted to the post of Forester on 13.10.1992 and whereas ultimately the petitioner had retired on attaining the age of superannuation on 31.07.2008. 3.1. The petitioner is seeking for deemed date of promotion in the post of Forester w.e.f. 11.11.1982. It appears that the petitioner, for being granted such deemed date, had submitted a representation to the respondent no.2 on 21.10.2021 i.e. approximately after thirteen years of his retirement and whereas, it appears that the respondent no.2 had called for a detailed note from the respondent no.3 herein and whereas, in the interregnum, it appears that the respondents had noticed that the petitioner had received an adverse entry in his ACR for the period between 1979-80 and whereas, the same had not been finalized. 3.2. It appears that vide an order dated 18.02.2022, considering that no documents were available with regard to the adverse entry more particularly since it appears that the petitioner had not made any appeal against the same, the adverse entry had been confirmed. Based upon the adverse entry being confirmed, the respondent no.3 had issued an order stating that the petitioner, upon confirmation of the adverse entry, would not be entitled to any deemed date. 4. Based upon the adverse entry being confirmed, the respondent no.3 had issued an order stating that the petitioner, upon confirmation of the adverse entry, would not be entitled to any deemed date. 4. Learned advocate Mr.Thaker on behalf of the petitioner would submit that while the petitioner is undoubtedly in delay but considered from the view point of the fact that the respondents did not finalize the adverse entry for the period between 1979-80, therefore, delay is more at the end of the respondents than attributable to the present petitioner and thus submitting, learned advocate would request this Court to consider the grievance of the petitioner. 5. In the considered opinion of this Court, the petition is hopelessly delayed as much as it can be. It would appear that while the petitioner in his representation is seeking deemed date in the post of Forester w.e.f. 11.11.1982, the petitioner had served from 1982 till the year 2008 during which period the petitioner did not agitate any grievance. It also appears that even upon retirement, the petitioner did not make any grievance with regard to such deemed date and whereas, as noticed herein above, the petitioner had, for the first time, submitted a representation after thirteen long years of his retirement and after around forty years of the probable date when the petitioner was entitled for promotion. 5.1. While it appears that the respondents have while considering the application of the petitioner noticed that adverse entry in the ACR of the petitioner had not been finalized for period between 1979-80, that by itself would not entitle the petitioner to claim any adverse benefit. In the considered opinion of this Court, as it appears, the petitioner had though having been intimated of the adverse entry, not filed any appeal there against and whereas, not having agitated anything with regard to the adverse entry at the relevant point of time, it would not be open for the petitioner now to say that the respondents having not finalized the same, benefit should flow to the petitioner. 6. At this stage this Court seeks to rely upon observations of the Hon’ble Supreme Court in case of State of Orissa and Another vs. Laxmi Narayan Das (Dead) The Lrs and others reported in 2023 SCC Online 825. Paragraphs no. 6. At this stage this Court seeks to rely upon observations of the Hon’ble Supreme Court in case of State of Orissa and Another vs. Laxmi Narayan Das (Dead) The Lrs and others reported in 2023 SCC Online 825. Paragraphs no. 23 to 34 of the said decision being relevant for the present purpose are reproduced hereinbelow for benefit: “23. Before applying the principles laid down by this Court on delay and laches. We deem it appropriate to refer the legal position. 24. In P. S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152 , it was laid down that a person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it should be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for the relief. 25. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278 , this Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction. 26. In State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others, (2013) 12 SCC 179 , this Court, while considering the issue regarding delay and laches observed that 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. Relief to a person, who puts forward a stale claim can certainly be refused relief on account of delay and laches. Relief to a person, who puts forward a stale claim can certainly be refused relief on account of delay and laches. Anyone who sleeps over his rights is bound to sufier. 27. In Chennai Metropolitan Water Supply and Sewerage Board and others v. T. T. Murali Babu, (2014) 4 SCC 108 , this Court opined as under:- "13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others, AIR 1969 SC 329 , the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp, (1874) 5 PC 221, which is as follows:- "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 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 afiect 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." 15. In State of M. P. and others etc. etc. vs. Nandlal Jaiswal and others etc. etc., AIR 1987 SC 251 , the Court observed that it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. etc., AIR 1987 SC 251 , the Court observed that it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. It has been further stated therein that if there is inordinate delay on the part of the petitioner in filing a 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. Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice. 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 scrutinize 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 time" 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. … … 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." 28. … … 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." 28. In State of Jammu & Kashmir vs. R. K. Zalpuri and others, (2015) 15 SCC 602 , this Court considered the issue regarding delay and laches while initiating a dispute before the Court. It was opined that the issue sought to be raised by the petitioners therein was not required to be addressed on merits on account of delay and laches. The relevant paras thereof are extracted below:- "27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim "Deo gratias- thanks to God”. 28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserves to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present." 29. The aforesaid view was followed by this Court in Union of India and others v. Chaman Rana, (2018) 5 SCC 798 . 30. Subsequently, a Constitution Bench of this Court in Senior Divisional Manager, Life Insurance Corporation of India Ltd. and others v. Shree Lal Meena, (2019) 4 SCC 479 , considering the principle of delay and laches, opined as under:- “36. 30. Subsequently, a Constitution Bench of this Court in Senior Divisional Manager, Life Insurance Corporation of India Ltd. and others v. Shree Lal Meena, (2019) 4 SCC 479 , considering the principle of delay and laches, opined as under:- “36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain v. New India Assurance Company Limited, (2011)12 SCC 197 would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the judgment. 37. Thus, the endeavour of the appellant, to approach this Court seeking the relief, as prayed for, is clearly a misadventure, which is liable to be rejected, and the appeal is dismissed.” 31. In Bharat Coking Coal Ltd. and others v. Shyam Kishore Singh- (2020) 3 SCC 411 , the issue regarding the delay and laches was considered by this Court while dismissing the petition filed belatedly, seeking change in the date of birth in the service record. 32. The issue of delay and laches was considered by this Court in Union of India and others vs. N. Murugesan and others, (2022) 2 SCC 25 . Therein it was observed that a neglect on the part of a party to do an act which law requires must stand in his way for getting the relief or remedy. The Court laid down two essential factors i.e. first, the length of the delay and second, the developments during the intervening period. Delay in availing the remedy would amount to waiver of such right. Relevant paras 20 to 22 of the above mentioned case are extracted below: “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. 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. 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.” 33. Finally, in paras 37 and 38, it was observed as under : “37. We have already dealt with the principles of law that may have a bearing on this case. … there was an unexplained and studied reluctance to raise the issue .… 38. ….Hence, on the principle governing delay, laches … Respondent No. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India.”. 34. We have already dealt with the principles of law that may have a bearing on this case. … there was an unexplained and studied reluctance to raise the issue .… 38. ….Hence, on the principle governing delay, laches … Respondent No. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India.”. 34. If the aforesaid principles of law are applied in the facts of the case in hand from the table of list of dates as available in para no. 12, it is evident that there is huge delay on the part of the respondents to avail of their appropriate remedy. Record of rights was finalised in the year 1962. As admitted in the writ petition, objections were filed by the respondents or their predecessors-in-interest before that. Remedy, after publication of final record of rights, was revision under Section 15(b) of the 1958 Act, to be filed within one year. No remedy was availed of. Nearly three decades after finalisation of record of rights, application was filed before the Settlement Officer, which was not maintainable after final record of rights is published. When no relief was granted by the Settlement Officer, the respondents kept quite for 13 years before filing a civil suit in the year 2003.It was dismissed as withdrawn in the year 2007. The writ petition was filed in the year 2008, which is subject matter of dispute in the present appeal. The aforesaid facts show that the writ petition to claim relief was filed after 46 years of finalisation of record of rights, which was highly belated. Hence, the respondents were no entitled to any relief. 2. Maintainability of writ petition when the civil suit filed for same relief was withdrawn without liberty to file fresh one and on the concealment of material facts from the Court.” 7. Having regard to the law laid down by the Hon’ble Supreme Court, in the considered opinion of this Court, agitating a grievance after four decades without any reasonable cause in the interregnum, would lead to a clear and specific conclusion that the petitioner had waived off his right and whereas, under such circumstances, the petition being hopelessly barred, is not required to be entertained and is hereby rejected.