Dr. Kala Nand Choudhary Vs State of Chhattisgarh

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1

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 2439 of 2024

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Order reserved on 10/06/2025

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Order delivered on 08/09/2025

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1 - Dr. Kala Nand Choudhary S/o Late Shri Lakshman Choudhary, Aged About 66 Years R/o SMIG- 28, Parijat Castle, Ring Road-2, Bilaspur, DistrictBilaspur ( C.G.).

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... Petitioner(s)

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versus

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1 - State Of Chhattisgarh Through- The Secretary, Health Department, Mantralaya, Atal Nagar Nava Raipur, District- Raipur ( C.G.).

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2 - CIMS Bilaspur, Through- The Dean, District- Bilaspur ( C.G.).

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... Respondent(s)

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(Cause-title taken from Case Information System)

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For Petitioner(s) : Mr. Prateek Sharma, Advocate For Respondent(s)/State : Mr. Suyashdhar Badgaiya, Deputy G.A.

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Hon'ble Shri Justice Ravindra Kumar Agrawal

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C.A.V. Order

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The petitioner has filed the instant writ petition claiming the following reliefs:-

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VED PRAKASH DEWANGAN

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Digitally signed by VED PRAKASH DEWANGAN Date: 2025.09.08 18:04:21 +0530

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(a) That, this Hon’ble Court may kindly be pleased to direct the respondents to grant third time bound payscale of 37400-67000 with paygrade of 8900 (Level 16) to the petitioner from January 2019 and make payment accordingly with 24% yearly interest and

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pension be fixed accordingly, in the interest of justice.

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(b) That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.

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Brief facts of the case are that the petitioner was appointed to the post of Medical Officer on 11-01-1989. After successful completion of his service tenure, he has been superannuated on 30-06-2023, from the post of Medical Officer/Assistant P rofessor. During his service tenure, he was granted the first-time bound pay scale of senior grade w.e.f. 01-01-2013 vide order dated 25-09-2014. Subsequently, he was granted the second time-bound pay scale of selection grade w.e.f. 01-01-2019 vide order dated 17-04-2020. In the meantime, on 08-08-2018, the State Government issued a circular granting the thirdtime-bound pay scale to the employees of Grades A, B, C and D, who have completed 30 years of service from th eir initial date of appointment and received only the two-time-bound pay scale. By the circular dated 25-01-2021, the circular dated 08-08-2018 is amended, and the employees of Grades A, B, C and D are made entitled to the third-time-bound pay scale from the date of completion of 30 years of their service. The petitioner is also claimed the third-time-bound pay scale as per the circular dated 08-08-2018 and 25-01-2021 and made his representations on 23-07-2021, 14-10-2022, and 20-06-2023, but no benefit has been granted to him till date. Hence, this petition.

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Learned counsel for the petitioner would submit that from the circular dated 08-08-2018 and 25-01-2021, it is apparently clear that the petitioner is entitled to the third time-bound pay scale. He was

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appointed on 11-01-1989, through the selection process, and has completed his 30 years of service in the year 2019. As per the circular, after 2016, the benefits of the third time-bound pay scale are to be extended to the employees. The State Government has introduced one pay band in the year 2013 w.e.f. 01-04-2013, in which 04 timebound pay scales are to be provided to the employees after an interval of 6 years. The petitioner was not provided with any benefit from 1989 till 2013. He was entitled to the first time-bound pay scale in the year 1999 and the second time-bound pay scale in the year 2009. During the entire tenure, the petitioner got only the two-time-bound pay scale. And therefore, as per the circular of the State Government, he is entitled to the 04 time-bound pay scale.

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Per contra, learned counsel for the state opposes and submits that, as per the circular dated 08-08-2018, the employees, who have been directly recruited, are entitled to the third time-pay scale after completion of 30 years of service. Vide circular dated 01-04-2013, there were separate provisions for sanctioning the four-tier pay scale for Medical Specialist/Medical Officers, working under the Directorate of Health Services, Chhattisgarh, in which, after completion of 6 years of service, they would be given Senior Grade pay scale Matrix Level 13, after completion of further 6 years, they would be given Senior Grade pay scale Matrix Level 14. Further completion of 6 years, they would be given Senior Grade pay scale of Matrix Level 15, to the extent of 2% of the total sanctioned posts. As per the circular dated 01-04-2013, the petitioner was also provided the benefit of Senior Grade pay scale Matrix Level 13 vide order dated 17-04-2020 w.e.f.

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01-01-2013, and Matrix Level 14 w.e.f. 01-01-2019. In the meantime, further period of 6 years, the petitioner is superannuated on 30-06-2023; therefore, he could not be provided the Matrix Level 15 pay scale. He would further submit that the Matrix Level 16 pay scale is to be provided for Medical Specialists; therefore, the same was not provided to the petitioner. Therefore, the petitioner is not entitled to the benefit of the circular dated 08-08-2018 as the benefit under the circular dated 01-04-2013 has been extended to him, and he cannot claim the benefit of both the circulars. The circular dated 01-04-2013 is specially for the Medical Specialists/Medical officers/Dentists, working under the Directorate, Health Services, Chhattisgarh. He would also submit that the petitioner had joined service in the year 1989, and he claimed the higher pay scale after his retirement. During his service tenure, he has not claimed higher pay scale and therefore, the petition also suffers from delay and laches and is liable to be dismissed.

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I have heard learned counsel for the parties and perused the documents annexed to the petition by the parties.

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Admittedly, the petitioner was appointed in the year 1989 as a Medical Officer under the Health Services. After bifurcation of the State, his services are allocated to the State of Chhattisgarh. He is superannuated on 30-06-2023. It is also not disputed that the petitioner was provided first-time-bound pay scale vide order dated 25-09-2014 w.e.f. 01-01-2013, and vide order dated 17-04-2020 second-time-bound pay scale w.e.f. 01-01-2019. The said orders have been issued in compliance of the circular dated 01-04-2013, which was issued for Medical Specialists/Medical officers/Dentists, working

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under the Directorate, Health Services, Chhattisgarh. The circular dated 01-04-2013 is reproduced hereinbelow:-

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Øमं��क एफ 1-10/2013/सत्राहा एक ��ज्य शा�सन, एतदी$ द्वा��, स�चा�लन�लय, स्वा�स्थ्य स वा�य', छत्ती�सगढ़ क अं�तग)त क�य)�त विवाशा षज्ञ / विचाविकत्स� अंधि.क�� nUr fpfdRld स वा� स�वाग) क अंधि.क�रि�य/ क0 विदीन��क 01 जनवा��, 2013 स विनम्न�न�स�� चा�� स्त��य वा तनमं�न क3 स्वा�क4 वित प्रदी�न क�त� हा6:-

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		विवाशा षK		fpfdRlk अंधि.क�	ंि��/दीन्तfpfdRld
स.क.	Js.kh	स�वाग) मं' स्वा�क4 त वा तनमं�न	स वा� अंवाधि.	स�वाग) मं' स्वा�क4 त वा तनमं�न	स वा� अंवाधि.
(1)	(2)	(3)	(4)	(5)	(6)
1	कविनष्ठ श्रे ण� वा तनमं�न	15600-39100 + ग्रे ड वा तन6600	-	15600-39100 + ग्रे ड वा तन5400	-
2	वारि�ष्ठ श्रे ण� वा तनमं�न	15600-39100 +ग्रे ड वा तन7600	100प्रवितशात कविनष्ठ श्रे ण� वा तनमं�न मं'6वाष) क3 स वा� उप��त	15600-39100 ग्रे ड वा तन6600	100प्रवितशात कविनष्ठ श्रे ण� वा तनमं�न मं'6वाष) क3 स वा� उप��त
3	प्रवा� श्रे ण� वा तनमं�न	37400-67000 + ग्रे ड वा तन8700	100प्रवितशात वारि�ष्ठ श्रे ण� वा तनमं�न मं'6वाष) क3 स वा� उप��त	15600-39100 ग्रे ड वा तन7600	100प्रवितशात वारि�ष्ठ श्रे ण� वा तनमं�न मं'6वाष) क3 स वा� उप��त
4	वारि�ष्ठ प्रवा� श्रे ण� वा तनमं�न	37400-67000 ग्रे ड वा तन8900	क�ल पदी/ क�5 प्रवितशात प्रवा� श्रे ण� वा तनमं�न मं'6वाष) क3 स वा� उप��त	37400-67000 ग्रे ड वा तन8700	क�ल पदी/ क�2 प्रवितशात प्रवा� श्रे ण� वा तनमं�न मं'6स=य) क3 स वा� उप��त

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2/ ��ज्य क नक्सल प्रभा�विवात धिजल/ (ग4हा विवाभा�ग द्वा�� घो0विषत) मं' क�य)�त अंधि.क�रि�य/ क0 6 वाष) क स्था�न प� 04 वाष) क3 स वा� अंवाधि. प=ण) क�न प� उक्त वा तनमं�न दी य हा0ग�। इनdh स वा� अंवाधि. क3 गणन� उनक क�य)भा�� ग्रेहाण क3 वितधिथा स क3 ज�य ग�।

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3/ उक्त वा तनमं�न छ�नchन सविमंवित क3 अंन�शा�स� प� विनय0क्त� प्र�धि.क�� द्वा�� स्वा�क4 त विकय� ज�वा ग�।

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4/ उक्त osrनमं�न मं' चायन हा0न प� उनक drZO;ksa क3 प्रक4 वित मं' क0ई परि�वात)न नहाE हा0ग� तथा� वा iwokZuqlkj vkikr कत)व्य/ क� विनवा)हान क�त �हा'ग ।

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5/ यहा स्वा�क4 वित विवात्ती विवाभा�ग क ;w-ओ. क्रमं��क 89/एफ 1002164/विवात�/विनयमं/था��/2013, विदीन��क 18.03.2013 द्वा�� दी� गई सहामंवित स ज�� क3 ज� �हा� हा6।

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छत्ती�सगढ़ शा�सन स्वा�स्थ्य एवा� परि�वा�� कल्य�ण foHkkx”

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The petitioner has not raised any objection when the first-time-bound pay scale was granted to him vide order dated 25-09-2014 w.e.f. 01-01-2013, that he is entitled to higher pay scale, i.e. Senior Grade pay scale from 1999 and Selection Grade pay scale from 2009. Even after the grant of the first-time-bound pay scale w.e.f. 01-01-2013, he has not raised any objection and has not claimed further benefit. When he was granted second-time-bound pay scale vide order dated 17-04-2020 w.e.f. 01-01-2019, no objection was raised at that time, also. It is only on 23-07-2021, he claimed the third-time-bound pay scale on the basis that he has completed 30 years of service, and at that time, the circular dated 08-08-2018 was effective, which reads as

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under:-

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“ ��ज्य शा�सन द्वा�� विनण)य धिलय� गय� हा6 विक शा�सक3य स वाक/ क0 जमंक प=ण) शा�सकरि�य स वा�क�ल मं' न्य=नतमं त�न उच्चा वा6तमंमं�न उपलब्. क��य� ज�ए। अंतL विवात्ती विवाभा�ग क स�दीविप)त ज्ञ�पन विदीन��क 26.4.2008 एवा� 4.8.2010 क अंन�स�� प्रभा�वाशा�ल समंयमं�न य0जन� 'क0 विवास्त�रि�त क�त हाMए वा4त्ती�य समंयमं�न वा तन उपलब्. क��न हा त� विनम्न�न�स�� य0जन� प्रभा�वाशा�ल क3 ज�त� हा6 ।

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��ज्य क3 धिसविवाल स वा�ओ� क धिजन स�वागN� मं' स�.� भातO हा0त� हा6 उनमं' "अं' 'ब' त एवा� "दी" वाग) क3 धिसविवाल स वा�ओ� क सदीस्य/ क0 शा�सक3य स वा� मं' प्रथामं विनय�विक्त विदीन��क स 30 वाष) क3 स वा� अंवाधि. प=ण) हा0न प� त�स�� समंयमं�न वा तनमं�न दी य हा0ग� अंथा�)त$ ऐस शा�सक3य स वाक धिजन्हा' शा�सक3य स वा� मं' विनय�विक्त क3 वितधिथा स दीR पदी0न्नवित/क्रमं0न्नवित/समंयमं�न वा तनमं�न क� हा� ल�भा प्र�प्त हाMआ हा6, क0 विदीन��क 1.1.2016 अंथावा� इसक ब�दी क3 वितधिथा स 30 वाष) क3 स वा� प=ण)

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क�न प� त4त�य समंयमं�न वा तनमं�न क3 प�त्रात� हा0ग�। शा�सक3य स वाक क3 त�स� समंयमं�न वा तनमं�न क धिलय स वा� अंवाधि. क3 गणन�, प्रवितय0ग�/चायन प��क्षा� क मं�ध्यमं स विकस� स�.� भातO क पदी प� क�य)भा�� ग्रेहाण क�न क3 वितधिथा स हा0ग�।

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��ज्य शा�सन क ऐस स�वाग) क शा�सक3य स वाक धिजन्हा' विवाविशाष्ट य0जन�मं� ल�भाक� ल�भा प्र�प्त हा6, क0 भा� 30 वाष) क3 स वा� क उप��त त4त�य समंयमं�न वा तनमं�न क3 प�त्रात� हा0ग� प�न्त� ऐस स�वा/ क0 त4त�य समंयमं�न वा तनमं�न दी न क धिलए मं�वित्रा-परि�षदी आदी शा प्र�प्त विकय� ज�न� आवाश्यक हा0ग�।

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��ज्य शा�सन क ऐस कमं)चा�रि�य/ क0 धिजनक मं=ल पदी क वा तनमं�न क� उन्नयत विदीन��क� 14.2006 एवा� इसक पश्चा�त$ विकय� गय� हा6, क3 त4त�य समंयमं�न वा तन क3 प�त्रात� क धिलए स�शा0धि.त वा तनमं�न मं' प=वा) विनय�विक्त वितधिथा स क�ल्पविनक विनय�विक्त मं�न� ज�एग�।

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विवाविभान्न वा तनमं�न/ क धिलए परि�विशाष्ट-1 क अंन�स�� त4त�य उच्चात� वा तन बYड एवा� प क ब तन/वा तन ल वाल क3 प�त्रात� हा0ग�। विवात्ती विवाभा�ग क ज्ञ�पन कमं��शा 97/107/विवात्ती/विनयमं/चा��, विदीन��क 28.04.2008 एवा� इसक क्रमं मं' ज�� विनदीZशा/ क3 अंन्य शातZ तथा� प्रविक्रय�ए� यथा�स्थिस्थावित ल�ग= �हा ग�। ”

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The circular dated 08-08-2018 is amended on 25-01-2021 which reads

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as under:-

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Ø- 65/677/2020/विवा/fu/चा�� नय� ��यप � अंटल नग�, fnukad 25 tuojh 2021

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izfr]

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शा�सन क समंस्त विवाभा�ग

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अंध्यक्षा, ��जस्वा मंण्डल, विबल�सप समंस्त विवाभा�ग�ध्यक्षा समंस्त स�भा�ग�य�क्त समंस्त कल क्ट�

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छत्ती�सगढ़

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विवाषय:- छत्ती�सगढ़ ��ज्य क धिसविवाल स वा� क सदीस्य/ क0 त4त�य समंयमं�न वा तन उपलब्. क��न ckcr~ laदीभा):विवात्ती विवाभा�ग क� ज्ञ�पन क्रमं��क 401/एल 2018-71-00727/ विवात्ती /विनयमं/चा�� विदीन��क 08.08.2018 (विवात्ती विनदीZशा 43/2018)

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छत्ती�सगढ़ ��ज्य क3 धिसविवाल स वा�ओ� क सदीस्य/ क0 आग बढ़न क विनस्थिश्चात अंवास� उपलब्. क��य ज�न हा त� विवात्ती विवाभा�ग क स�दीविभा)त ज्ञ�पन विदीन��क 08.08.2018 क द्वा�� त4त�य समंयमं�न वा तनमं�न य0जन� प्रभा�वाशा�ल क3 गई हा6।

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2/ शा�सन क स�ज्ञ�न मं' आय� हा6 विक उक्त ज्ञ�पन मं' उल्ले धि`त त4त�य समंयमं�न वा तनमं�न य0जन� क3 क�विडक�-1 मं' ऐस शा�सक3य स वाक धिजन्हा' शा�सक3य स वा� मं' विनय�विक्त क3 वितधिथा स दी0

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पदी0न्नवित/कमं0न्नवित/समंयमं�न वा तनमं�न क� हा� ल�भा प्र�प्त हाMआ हा6, क0 विदीन��क 01.01.2016 अंथावा� इसक ब�दी क3 वितधिथा स 30 वाष) क3 स वा� प=ण) क�न प� त4त�य समंयमं�न वा तनमं�न क3 प�त्रात� हा0ग� ल ` हा0न क क��ण विवाविभान्न प्रक�ण/ मं' वा तन विवास�गfr उत्पन्न हा0 �हा� हा6 तथा� शा�सक3य स वाक/ क0 त4त�य समंयमं�न वा तनमं�न क� ल�भा प्र�प्त नहाE हा0 प� �हा� हा6।

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3/ अंr% ��ज्य शा�सन द्वा�� छत्ती�सगढ़ शा�सन विवात्ती विवाभा�ग क स�दीविभा)त ज्ञ�पन विदीन��क 08.08. 2018 (विवात्ती विनदीZशा 43/2018) मं' उल्ले धि`त त4त�य समंयमं�न वा तनमं�न य0जन� क3 क�विडक�- 1 क0 विनम्न�न�स�� स�शा0धि.त विकय ज�न क� विनण)य धिलय� गय� हा6:-

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"1. ��ज्य क धिसविवाल स वा�ओ� क धिजन laoaxksZa मं' स�.� भातO हा0त� हा6 उनमं' "अं" "c" स' एवा� "दी" वाग) क3 धिसविवाल स वा�ओ� क सदीस्य/ क0 शा�सक3य स वा� मं' प्रथामं विनय�विक्त विदीन��क स 30 वाष) क3 स वा� अंवाधि. प=ण) हा0न प� य0जन� क परि�विशाष्ट- अंन�स�� त4त�य उच्चात� समंयमं�न वा तनमं�न क3 प�त्रात� विदीन��क 1.1.2016 क0 अंथावा� इसक पश्चा�त$ हा0ग�। शा�सक3य स वाक क3 त�स� समंयमं�न वा तनमं�न क धिलए स वा� अंवाधि. क3 गणन� चायन/प्रवितय0ग� प��क्षा� क मं�ध्यमं स विकस� स�.� भातO क पदी प� क�य)भा�� ग्रेहाण क�न क3 frfFk स हा0ग�।

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विवात्ती विवाभा�ग क स�दीविमं)त परि�षत्रा मं' विनविहात अंन्य प्र�वा.�न यथा�वात ल�ग= �हा'ग ।

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छत्ती�सगढ़ क ��ज्यप�ल क न�मं स तथा� आदी शा�न�स��, lgh@& MkW- ,-ds- flag la;qDr lfpo”

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When the benefit of a higher pay scale/time-bound pay scale is provided in order dated 01-04-2013 for Medical Specialists/Medical officers/Dentists, working under the Directorate, Health Services, Chhattisgarh, the petitioner cannot shift his benefit to another circular, particularly when he benefited from the circular dated 01-04-2013. Further, the benefit of 02 time-bound pay scale w.e.f. 01-01-2013 (Senior Grade pay scale) and 01-01-2019 (Selection Grade pay scale) have already been provided to the petitioner. The petitioner has not challenged the order dated 01-04-2013 and accepted the benefit of first time-bound pay scale. The second-time-bound pay scale was also provided to the petitioner under the circular dated 01-04-2013, which has also been accepted by the petitioner. Before the third time-bound pay scale, the petitioner retired from service and therefore, the benefit of the same could not be extended to him. The circular dated 01-04-2013 is very clear about the grant of time-bound pay scale to

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the Medical Officers in the regular interval of 6 years from the date of grant of their earlier pay scale.

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Another aspect of the matter is that till 2021, the petitioner had not claimed the benefit of the higher pay scale. The claim of the petitioner is that after completion of 20 years of service, he is entitled to a higher pay scale in the years 1999 and 2009. Service service-related claim cannot be raised after lapse of an inordinate delay, as held by the Hon’ble Supreme Court in a catena of decisions. The Hon’ble Supreme Court, in the matter of Bichitrananda Behera Vs. State of Orissa and others, reported in 2023 (18) SCC 420, under relevant para 27 to 30 held as under:-

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“27. Profitably, we may reproduce relevant passages from certain decisions of this Court:

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28. Union of India v Tarsem Singh, (2008) 8 SCC 648:

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“7. 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

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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)

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29. Union of India v N Murugesan, (2022) 2 SCC 25:

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"Delay, laches and acquiescence

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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.

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Laches

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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.

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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.

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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 the plaintiff, while

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an issue concerned alone would be amenable to acquiescence.

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Acquiescence

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24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other.

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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)

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30. SBI v M J James, (2022) 2 SCC 301:

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"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 non- existent. Doctrine of delay and laches as well as

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acquiescence are applied to non-suit 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 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.

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xxx

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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

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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 12-13)

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“12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows:

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‘In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

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(i) acquiescence on the claimant's part; and

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(ii) any change of position that has occurred on the defendant's part.

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Acquiescence in this sense does not mean

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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.’

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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

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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?”

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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.

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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 nature of estoppel bars the respondent from claiming violation of the right of fair representation.” (emphasis supplied)”

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In the present case, the conduct of the petitioner is evidence of his intention to abandon an equitable right, having full knowledge and express approbation, where a person has the right to set aside the action, but no action taken which amounts to acceptance. Admittedly, the petitioner has not challenged the earlier benefit of the first and second time-bound pay scales that he is entitled to from 1999 and 2009, respectively. Laches, like acquiescence, is based upon equitable consideration, but laches, unlike acquiescence, imports even simple passivity. On the other hand, acquiescence implies active ascent and is based upon the rule of estoppel.

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