Three employees claimed seniority as Assistant Grade-I from the date of DPC recommendation rather than the 2010 promotion order. The High Court dismissed the petitions at the threshold, holding the delay of several years was fatal under the doctrine of delay and laches.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 1874 of 2013
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary Man Power Employment Deptt, Mantralaya, New Raipur, Dist Raipur, Cg, Chhattisgarh
2. Joint Director Employment And Training Of C.G., Raipur, Dist Raipur, Cg, District : Raipur, Chhattisgarh
3. Director Employment And Training Of C.G., Raipur, Dist Raipur, Cg, District : Raipur, Chhattisgarh
---- Respondents
AND
WPS No. 1913 of 2013
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary Man Power Employment Deptt. Mantralaya New Raipur C.G. Chhattisgarh
2. Joint Director Employment And Training Of C.G. Raipur Distt. Raipur C.G. , District : Raipur, Chhattisgarh
3. Director Employment And Training Of C.G. Raipur Distt. Raipur C.G , District : Raipur, Chhattisgarh
---- Respondents
AND
WPS No. 1910 of 2013
---- Petitioner
-2-
Versus
1. State Of Chhattisgarh Through The Secretary Man Power Employment Deptt. Mantralay New Raipur C.G. , Chhattisgarh
2. Joint Director Employment And And Train Ing Of C.G. Raipur Distt. Raipur C.G. , District : Raipur, Chhattisgarh
3. Director Employment And Training Of C.G Raipur Distt. Raipur C.G , District : Raipur, Chhattisgarh
| ---- Respondents |
|---|
| For Petitioners | : | Shri Anuj Kumar Pandey, Advocate |
|---|---|---|
| holding the brief of Shri Bhupendra | ||
| Singh, Advocate. | ||
| For Respondents/State | : | Shri Atanu Ghosh, Dy. G.A. |
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
19.07.2024
1. The petitioners in these petitions have claimed the seniority from the date on which the Departmental Promotion Committee (DPC) recommended their names for promotion to the post of Assistant Grade-I. The order of promotion was passed on 27.08.2010 and pursuant to that order, the petitioners were promoted to the post of Assistant Grade-I.
2. Learned counsel for the petitioners submitted that without any reason, the recommendation of the DPC was kept in abeyance for 1 year and 6 months, therefore, the petitioners are entitled to seniority from the date of recommendation.
3. The DPC convened the meeting and the names of the petitioners were recommended for promotion to the post of A.G.-I; the order of
3
promotion was passed on 27.08.2010; the petitioners filed this petition in the month of June, 2013; and, in para 7 of the petition, the petitioners have categorically stated that there is no delay in filing the present petition.
4. In the matter of Bichitrananda Behera Vs. State of Orissa and others reported in 2023 Livelaw (SC) 883, the Hon’ble Supreme Court held in para 21 as under:-
“21 . Profitably, we may reproduce relevant passagesfrom certain decisions of this Court:
“To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”
(emphasis supplied)
(B) Union of India v N Murugesan, (2022) 2 SCC 25:
"Delay, laches and acquiescence
-4-
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. 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.
Laches
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.
23. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by
5
the plaintiff, while an issue concerned alone would be amenable to acquiescence.
Acquiescence
24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other.
25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis.”
(emphasis supplied)
(C) Chairman, State Bank of India v M J James, (2022) 2 SCC 301:
"36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is nonexistent. Doctrine of delay and laches as well as acquiescence are applied to nonsuit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to
-6-
succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case.
X x x
38. In Ram Chand v. Union of India [Ram Chand v. Union of India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action.The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v.Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 1213)
“12. The statement of law has also been summarised in Halsbury's Laws of England, Para
7
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?”
-8-
39. Before proceeding further, it is important to clarify distinction between “acquiescence” and “delay and laches”. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See “Introduction”, U.N. Mitra, Tagore Law Lectures — Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence.
40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the
9
nature of estoppel bars the respondent from claiming violation of the right of fair representation.”
5. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. Remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others’ ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons, such delay does not deserve any indulgence and on the said ground alone this Court deems it appropriate to dismiss this petition at the very threshold. The doctrine of delay and laches, or for that matter statutes of limitation are considered to be statutes of repose and statutes of peace. There must be a lifespan during which a person must approach the court for their remedy. Otherwise, there would be unending uncertainty as to the rights and obligations of the parties.
6. There is an inordinate delay in filing the present petition, the petitioners are claiming the seniority from the date of the execution of the order and recommendation of DPC i.e. from 28.02.2009 whereas, the order of promotion was issued on 27.08.2010 but during that period they did not approach this Court or the other
-10-
authorities for the execution of the resolution of the Departmental Promotion Committee.
7. Taking into consideration the facts discussed above and the law laid down by the Hon’ble Supreme Court in the matter of Bichitrananda Behera (supra) , in the opinion of this Court, these petitions are liable to be and are hereby dismissed . No costs.
Sd/-
(Rakesh Mohan Pandey) Judge
Nimmi
2 issues framed by the court
Whether the petitioners are entitled to seniority from the date of DPC recommendation despite filing writ petitions about four years after the promotion order.
Whether the delay in approaching the court should be excused on the ground that the claim is a continuing wrong.
Colour shows how this judgement treated each authority
Bichitrananda Behera vs. State of Orissa and othersRelied on¶4
2023 Livelaw (SC) 883
Guthu Ram
Balbhadra Prasad Sahu
Yesaiya Ram
State of Chhattisgarh through the Secretary Man Power Employment Deptt.
Joint Director Employment and Training of C.G., Raipur
Director Employment and Training of C.G., Raipur
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
