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2025 DIGILAW 430 (HP)

Ganga Guleria v. Himachal Pradesh University

2025-03-21

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, J. Notice. Ms. Archna Dutt, learned Counsel, appears and waives service of notice on behalf of the respondent. 2. In this writ petition filed 16.12.2024, petitioner, aged 74 years, seeks direction to the respondent-University to release her, Senior Scale and Selection Grade with all consequential benefits. 3. The case set-up by the petitioner is that:- 3(i) She was appointed as University Volleyball Coach in the year 1978 alongwith S/Sh. Merwvyn Desouza, Brajendra Sheel and B.B. Bahl. 3(ii) Sometime during the year 1993, petitioner and the above three named incumbents were designated as Lecturers. 3(iii) Petitioner took voluntarily retirement in the year2006, pursuant to which, she is now a pensioner. Petitioner’s grievance is that the above three named individuals were placed in the Senior Scale from year 1999 and Selection Grade w.e.f. the year 2004 under an office order issued on 19.07.2011, whereas, petitioner, who is similarly situated, has not been granted the aforesaid benefits. Hence, this writ petition. 4. In Marinmoy Maity Vs. Chanda Koley and others, [Civil Appeal Nos. 5027 of 2024 @ Special Leave Petition (Civil) No. 30152 of 2018, decided on 18.04.2024], the Hon’ble Apex Court held that an applicant who approaches the Court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from deep slumber ought not to be granted the extraordinary relief by the writ Courts. Delay or laches is one of the factorswhich should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action. Relevant portion from the decision is as under: - “9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself. Relevant portion from the decision is as under: - “9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action. 10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled. 11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and laches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal and others v. State of W.B and others. (2009) 1 SCC 768 , has held to the following effect:- “56. 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. 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. 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 already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [ AIR 1964 SC 1006 : (1964) 6 SCR 261 ], Moon Mills Ltd. v. Industrial Court [ AIR 1967 SC 1450 ] and Bhoop Singh v. Union of India [ (1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969 ] ). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [ (1969) 1 SCC 110 ] , Durga Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC185] and Rabindranath Bose v. Union of India [ (1970) 1 SCC 84 ] ). 58. There is no upper limit and there is no lower limit also 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." The ratio of above decision applies to the facts of the instant case. The writ petition suffers from unexplained delay and laches. As per the pleaded case, cause of action had accrued to the petitioner in the year 2011 when Senior Scale and Selection Grade was granted to three incumbents, who according to her, were similarly situated as the petitioner, yet the petitioner did not take any steps at the relevant time for redressal of her grievances. A copy of order passed on 26.02.2011 in CWP(T)No. 9950 of 2008, wherein present petitioner was one of the petitioners, has been placed on record by the learned counsel of the petitioner. The order makes it evident that petitioner was aware of the cause of action that is why she was given liberty to represent to the respondent-University. A copy of order passed on 26.02.2011 in CWP(T)No. 9950 of 2008, wherein present petitioner was one of the petitioners, has been placed on record by the learned counsel of the petitioner. The order makes it evident that petitioner was aware of the cause of action that is why she was given liberty to represent to the respondent-University. During hearing of the case, learned counsel for the respondent- University submitted that petitioner had preferred a representation to the respondents only on 20.08.2024, seeking to remove pay anomaly and pension differences. Her representation was considered and rejected on 22.02.2025. Be that as it may, moving a representation years later from the accrual of cause of action and its consequent decision will not rekindle the cause of action, which was available to the petitioner in the year 2011. In view of above, there is no merit in the present writ petition. The same is accordingly dismissed. Pending miscellaneous application(s), if any, also to stand disposed of.