Dismissed

Suresh Kapoor and Others v. State of Hp and Others

Himachal Pradesh HC1 Dec 2022CWP/1218/2021

Case brief

AI extract

What is this about?

In a writ petition regarding seniority and promotion disputes among Assistant and Executive Engineers, the High Court was asked to quash seniority lists. The petitioners filed the challenge over 12 years after the relevant seniority list was finalized and after multiple promotions had been granted to other officials. The court held that the remedy under Article 226 is discretionary and refused to

What did the court decide?

The petition was dismissed as it suffered from inordinate delay, unexplained laches, and the petitioners had acquiesced in the final seniority list.

Suresh Kapoor and Others Vs State of Hp and… — Service and Employment | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.1218 of 2021.

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Reserved on : 15.11.2022.

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Date of decision: 01.12.2022.

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Suresh Kapoor and others …..Petitioners. Versus State of H.P. and others …..Respondents. Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?¹ Yes

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For the Petitioners :	Mr. Dilip Sharma, Senior Advocate with Mr. Manish Sharma, Advocate.
For the Respondents :	Mr. Ashok Sharma, Advocate General with Mr. Rajinder Dogra, Senior Additional Advocate General, Mr. Vinod Thakur and Mr. Shiv Pal Manhans, Additional Advocate Generals, for respondents No.1 and 2.
	Mr. K.D.Shreedhar, Senior Advocate with Ms. Sneh Bhimta, Advocate, for respondent No.3.

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1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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Tarlok Singh Chauhan, Judge

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The instant petition has been filed for grant of the following substantive reliefs:-

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“a) That the instructions issued vide letter dated 30.1.2018, Annexure P-12, and letter dated 25.2.2019, Annexure P-15, may kindly be read down/struck down to the extent these instructions run counter to the verdict of this Hon’ble Court in the judgments rendered in the cases of VK Behl (Annexure P-8), Vinod Kumar Bisht (Annexure P-9) and Baljeet Singh (Annexure P-10).

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b) That the seniority assigned to the respondent No.3 as Assistant Engineer vide letter dated 4.11.2008, Annexure P-6, by taking into account his army service on the basis of Rule 5(1) of the ExServicemen (Reservation of vacancies in Himachal Pradesh Technical Services Rules, 1985, Annexure P-2, which has already been read down by this Hon’ble Court in the judgment rendered in the cases of Vinod Kumar Bisht (Annexure P-9) and Baljeet Singh (Annexure P-10) by placing reliance on judgment in the case of VK Behl(Annexure P-8), may kindly be quashed and set aside. Consequently, promotion granted to the petitioner as Executive Engineer vide notification dated 9.5.2011, Annexure P-7 and as Superintending Engineer vide notification dated 29.8.2017, Annexure P-11, may also be quashed and set aside;

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c) That the respondent department may be directed to hold review DPC(s) for promotion to the post of Executive Engineer and Superintending Engineer on the basis of fresh seniority list in consonance with the judgments of this Hon’ble Court at Annexures P-7 to P-9, and the petitioners, may be held entitled to all consequential benefits as a result thereof.”

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However, before arguments on merits of the case could be heard, learned Advocate General as also learned counsel for respondent No.3 raised preliminary objections regarding maintainability of this petition, more particularly it being barred on the grounds of delay and laches as also acquiescence and waiver.

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We have heard the learned counsel for the parties and have gone through the pleadings and material placed on record.

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This Court, at this stage, is required only to look into the undisputed facts which can be enumerated as under:-

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(i) The petitioners were appointed as Assistant Engineers in the years 1996 and 1997, respectively, whereas, respondent No.3 was appointed as an Assistant Engineer against a

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vacancy reserved for Ex-Servicemen under the Technical Service Rules, 1985, subsequent to the petitioners vide notification dated 08.03.2000 and joined on 13.03.2000.

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(ii) The final seniority list of the Assistant Engineers (Civil) as on 30.06.1997 was circulated vide letter dated 20.08.1997 and thereafter respondent No.3 was appointed as Assistant Engineer against a vacancy reserved for Ex-Servicemen vide notification dated 08.03.2000 and he joined on the said post on 13.03.2000.

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(iii) The final seniority list of Assistant Engineers (Civil) as on 30.06.1997 was quashed by the H.P. Administrative erstwhile Tribunal vide its order dated 16.05.2002 passed in O.A. No. 1940 of 1997 titled Kuldeep Rao and others vs. State of H.P. and others and the seniority list issued on 01.09.1995 was restored.

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(iv) Later, vide letter dated 07.08.2006, the respondents issued a provisional seniority list of Assistant Engineers(Degree Holders) (Annexure

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P-4) as on 31.05.2006 wherein respondent No.3 was shown below the petitioners at Sr. No. 158. However, vide notification dated 23.04.2007 (Annexure P-5), respondent No.3 came to be promoted to the post of Executive Engineer (Civil) on ad hoc basis.

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(v) Thereafter, vide letter dated 04.11.2008 final seniority list of Assistant Engineer(Civil) (Degree Holders) as on 31.05.2006 was circulated wherein respondent No.3 was now shown above the petitioners at Sr. No. 45.

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(vi) In the meantime, the High Court decided the case of S.S. Kutlehria vs. State of H.P. and the said judgment was implemented vide notification dated 09.05.2011 where respondent No.3 as also petitioner Nos. 1 to 3 were assigned dates of regular promotion as Executive Engineers as follows:-

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Petitioner/respondent		Date of regular promotion as Executive Engineer
1. Surinder Paul (R-3)		1.11.2009.
2. Suresh Kapoor(P-1)		1.3.2010
3.Narinder Paul Chauhan(P-2)	Singh	1.4.2010

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Vikas Sood (P-3)

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1.8.2010

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(vii) The other petitioners were thereafter promoted as Executive Engineers on regular basis as per the following details:-

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Sr. No.	Date of regular promotion as Executive Engineer
1. Ajay Kapoor (P-4)	27.08.2011
2. Diwakar Singh Pathania (P-5)	27.08.2011
3. Raj Kumar Verma (P-6)	27.08.2011
4. Vijay Kumar (P-7)	27.08.2011
5. Deepak Raj (P-8)	21.11.2013
6. Pasang Negi (P-9)	21.11.2013

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It is not in dispute that the petitioners did not challenge the seniority list issued vide letter dated 04.11.2008 which otherwise adversely affected their rights and had made them fully aware that the petitioners on the basis of having been appointed as Assistant Engineers (Civil) against vacancy reserved for Ex-servicemen had been assigned seniority in terms of the Ex-Servicemen (Reservation of vacancies in Himachal Pradesh Technical Services) Rules, 1985, by taking into consideration the period of approved military service of 4 years, 11 months

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and 27 days rendered by respondent No.3 in the Armed

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Forces.

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It is also not in dispute that based upon the seniority of respondent No.3 in the cadre of the Assistant Engineers, he was promoted to the post of Executive Engineer vide notification dated 23.04.2007 on adhoc basis. Yet, again, the petitioners did not come forward to assail the same. It is yet again not in dispute that the final seniority list of the degree holders AMIE Assistant Engineers (Civil) was again re-drawn consequent upon further review DPC convened in pursuance to the orders passed by this Court on 03.03.2011 in COPC No. 214 of 2010 vide letter dated 02.05.2011 wherein respondent No.3 was again shown senior to the petitioners at Sr. No. 74 and a specific note appeared in the seniority list against the date of appointment as AE which reads as under:-

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“ 13.03.2K (Seniority assigned w.e.f. 16.03.1995 by counting his army service) .”

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The names of the petitioners, on the other hand, appeared from Sr. No. 79 onwards. It is thereafter that respondent No.3 was promoted to the post of Superintending Engineer in the year 2017 vide notification

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dated 29.08.2017 and despite this no representation was made by the petitioners and it is only on 26.06.2018 that the petitioners, for the first time, objected to the seniority list.

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Thus, what stands established on record is the fact that the petitioners at no stage have questioned the assignment of seniority to respondent No.3 initially as Assistant Engineer on 13.09.2006 and thereafter as Executive Engineer vide notification dated 23.04.2007 and further not questioned the final seniority list of Assistant Engineers as circulated vide letter dated 02.05.2011 (Annexure R3/7) and have approached this Court only on 02.01.2021 by filing the instant petition, for the reliefs quoted above.

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It is more than settled that there has to be an element of repose and a stale claim, more particularly to the one related to seniority and promotion, cannot be resuscitated.

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It is also beyond any cavil or doubt that the remedy under article 226 of the Constitution of India is a discretionary one. For sufficient or cogent reasons, the court

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may, in a given case, refuse to exercise its jurisdiction; delay and laches being one of them. While considering the question of delay and laches on the part of the petitioners, the court must also consider the effect thereof.

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As regards the service matters, more particularly, pertaining to seniority and promotion, the delay is to be strictly construed or else it would amount to unsettling the settled matters after a lapse of time. A person aggrieved by an order of promotion should approach the Court at least within six months or at the most a year of such promotion. It has been further held that 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 would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 of the Constitution of India in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle matters.

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Normally, delay itself may not defeat the party’s claim or relief unless the position of the opposite party has been irretrievably altered or would be put to undue hardship. Delay is not absolute impediment to exercise judicial discretion and rendering of substantial justice and such matters lie in the exclusive discretion of the Court, which discretion obviously has to be exercised fairly and justly. The underlying principle behind dismissal of petition on the ground of delay and laches is to discourage agitation of stale claim and has to be construed from the perspective of the opposite party being prejudiced especially when the delay effects others’ ripened rights, which may have attained finality. Each case will have to be decided on its own facts and merits. There may be cases where the demand of justice is so compelling that the Court would be inclined to interfere in spite of delay. Ultimately, as observed above, it would be a matter within the discretion of the Court.

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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

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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.

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It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (Refer: Shiba Shankar Mohapatra and others vs. State of Orissa and others, (2010) 12 SCC 471).

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At this stage, it shall be profitable to refer to the following observations of the Hon’ble Supreme Court in Vijay Kumar Kaul and others vs. Union of India and others, (2012) 7 SCC 610 as under:

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“[23] It is necessary to keep in mind that claim for the seniority is to be put forth within a reasonable period of time. In this context, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State

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of Tamil Nadu, 1974 AIR(SC) 2271, wherein a twoJudge Bench has held thus: -

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"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 would 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 relief and who stand by and allow things to happen and then approach the courts to put forward stale claims and try to unsettle matters."

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[24] In Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr., 2006 AIR(SC) 1581 this Court had held thus that delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports,

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1970 AIR(SC) 769. Of course, the discretion has to be exercised judicially and reasonably.

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[25] In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors., 2009 AIR(SC) 571 this Court has opined that one of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.

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[26] From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy.

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[27] The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time.”

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A stale claim of getting promotional benefits normally should not be entertained and reference in this regard can conveniently be made to the judgment rendered by the Hon’ble Supreme Court in State of Uttaranchal and another vs. Shiv Charan Singh Bhandari and others, (2013) 12 SCC 179 , wherein after considering the entire law on the subject, it was held as under:

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[27] We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion.

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28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances

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where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court.”

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Seniority is a civil right, which has an important

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and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit or meritcum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority is unsettled, it may generate bitterness, resentment, hostility among the Government servants and even the enthusiasm to do quality work may be lost.

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Learned counsel for the petitioners would argue that determination of seniority dispute is continuing wrong and therefore, relief should be granted even if there is a long delay in seeking remedy, however we find no force in the said submission.

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The legal position with respect to belated service related claim is well articulated by the Hon’ble Supreme Court in its decision in Union of India and others vs. Tarsem Singh, (2008) 8 SCC 648 , wherein it was held as under:

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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 re-opening 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. In so far as the

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consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, 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.

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In determining whether there has been such

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delay so 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 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 afterwards to be asserted. In such cases, lapse of time and delay are most material. Upon these considerations rests

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the doctrine of laches. (Refer U.P. Jal Nigam vs. Jaswant Singh, (2006) 11 SCC 464 para 12) .

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It is by now settled principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity “delay defeats equities”.

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If a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.

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Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. These principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent. ( Refer: Prabhakar vs. Joint Director, Sericulture Department and another, 2015 (15) SCC 1) .

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The Constitution Bench of the Hon’ble Supreme Court in Malcom Lawrence Cecil D’Souza vs. Union of India and others, AIR 1975 SC 1269 held that “although security of service cannot be used as a shield against

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administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible, to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.”

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Thus, what appears to be more settled is that once seniority has been fixed and it remains in existence for a reasonable time, any challenge to the same should not be entertained.

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Earlier to that, a Constitution Bench of Hon’ble Supreme Court in Rabindra Nath vs. Union of India, AIR 1970 SC 470 held as under:

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“In so far as the attack was based on the 1952 rules, it must fail on the ground that this petition under Art. 32 of the Constitution had been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Even though Art. 32 is a guaranteed right it does not follow that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay. It would be unjust to deprive the respondents of the rights which had accrued to them. Every person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.”

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Similar reiteration of law is to be found in the recent judgments of the Hon’ble Supreme Court in Union of India and others vs. Chaman Rana, (2018) 5 SCC 798 and 2019(3) SCALE 527, Union of India and others vs. C. Girija and others , wherein the Hon’ble Supreme Court reiterated the observations made in P.S. Sadasivaswamy and Shiv Charan Singh Bhandari’s cases and observed that remaining oblivious to the factum of delay and laches and granting relief is contrary to all

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settled principles and would bring a tsunami in the service resulting in administrative chaos.

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Learned counsel for the petitioners would, however, argue that the Original Application No.191 of 1999 filed by the Assistant District Attorneys before the erstwhile Tribunal assailing constitutional validity of the Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal Pradesh Non-Technical Services) Rules, 1972, was dismissed by the learned Tribunal on 12.01.2001 and the same was assailed before this Court in CWP No. 488 of 2001 titled V.K. Behal and others vs. State of H.P. and others and the same was allowed by this Court vide judgment dated 29.12.2008 wherein in paras 26 and 27, it was held as under:-

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“26. In view of the above discussion we are clearly of the view that in case Rule 5(i) of the Rules has to be upheld, the entire benefit of the same should be made available only to those ex-servicemen who joined the armed forces during the period of emergency. As far as other ex-servicemen are concerned they may avail the benefit of reservation and fixation of pay but cannot count the past service rendered in the armed forces for the purposes of counting their seniority in the civil service which they

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have joined under the reserved category of exservicemen. It is also made clear that in all cases the benefit of past service can only be available from the date when the ex-servicemen acquired the minimum educational qualification. No benefit can be given for the army service rendered prior to the date of attaining such education qualification.

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27. In view of the above discussion, the writ petition is allowed. The Provision of Rule 5(1) of the Rules are read down and they are held to be unconstitutional in so far as they give benefit of counting the past army service towards seniority in civil employment in case of ex-servicemen who have not joined the Armed forces during the period of emergency. It is also held that the benefit of such service can not be given from a date prior to the date when the ex-serviceman attains the minimum educational eligibility criteria prescribed in the rules.”

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The Original Application No. 3686 of 2000 filed by one Vinod Kumar Bisht and others before the erstwhile Tribunal wherein the constitutional validity of Rule 5(1) of the R&P Rules was challenged and the Original Application was transferred to the High Court and re-registered as CWP(T) No. 7035 of 2008 and disposed of vide judgment dated 20.10.2010 relying upon the judgment in V.K. Behl’s case(supra).

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Likewise another writ petition No. 132 of 2010 was also disposed of by this Court vide judgment dated 30.12.2010. Later, the Hon’ble Supreme Court vide its judgment dated 25.08.2017 rendered in case of R.K. Barwal vs. State of H.P., affirmed the judgment of this Court in V.K. Behl’s case (supra). Thereafter, CWP No. 1735 of 2020 came to be decided by a Division Bench of this Court vide judgment dated 27.11.2020 and the same pertained to the seniority of Engineers in HPSEB. This Court held that since in the earlier litigation, the Ex-servicemen had duly contested the litigation and the law declared by this Court was a judgment in rem and not in personam , hence, in view of the fact that the provisions of Rule 5(1) of the Technical Service Rules, 1985, which were pari materia with the provisions of Rule 5(1) of the Non Technical Service Rules, 1972, the law declared by this Court in V.K. Behal’s case (supra) was applicable to the Technical Service Rules, 1985 also.

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In substance, the claim of the petitioners is that since the judgment rendered in V.K. Behl’s case as affirmed by the Hon’ble Supreme Court in R.K.Barwal’s case, even if, it is related to the interpretation of the

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identical rules being Rule 5(1) of the Technical Service Rules, 1985, would equally apply to the Non Technical Service Rules, as held by this Court in CWP No. 1735/2020. However, we need to reiterate that this Court, at this stage, is not going into the merits of this case and is not deciding the case on merits, but is confining itself to the question of delay and laches, as raised by the respondents.

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It is not in dispute that the issue in V.K. Behl’s case as affirmed by the Hon’ble Supreme Court in R.K. Barwal’s case(supra) pertained to the interpretation regarding Rule 5(1) of the Technical Service Rules and not to the interpretation of Rule 5(1) of the Non Technical Service Rules. This question was still at large and it was only in two orders that on 20.10.2010 and thereafter on 30.10.2010 that a Division Bench of this Court, for the first time, observed that the issue in question regarding reservation of technical service has to be considered in light of the judgment in V.K. Behl’s case which was further pending consideration in the Hon’ble Supreme Court. However, these cases pertained to the Electricity Department and not to the department of the petitioners i.e. HPPWD.

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That apart, it needs to be noticed that despite final seniority list of Assistant Engineers(Civil) having been issued on 04.11.2008, the petitioners did not choose to assail the same. Therefore, even these two orders subsequently passed by this Court on 20.10.2010 and 30.10.2010 are of no avail or advantage to the petitioners.

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This Court sees no reason to interfere with stale or dead claim presented in this writ petition relating to seniority at this distance of time in view of the observations made in P.S. Sadasivaswamy’s case, wherein the Hon’ble Supreme Court has guided that the matter of promotion and seniority should be agitated without delay and at least within six months or one year from the date of accrual of cause of action. The approach of the petitioners is found inordinately belated.

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Thus, it would be prudent for this Court not to interfere and create multiple complications of seniority etc. and upset the settled rights of others in the cadre. The petitions as against the rights of the private respondent suffers from inordinate delay and un-explained laches.

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The law on the point of delay in approaching the Court and, in particular, challenge to a seniority list is well settled in view of the judgment rendered by Hon’ble three Judges of the Hon’ble Supreme Court in Ajay Kumar Shukla and others vs. Arvind Rai and others 2022 Labour and Industrial Cases 1475 , wherein after placing reliance on the earlier judgment of Shiba Shankar Mohapatra vs. State of Orissa (2010) 12 SCC 471 , it was held that seniority list which remains in existence for more than three to four years unchallenged should not be disturbed. It is apt to reproduce the relevant observations made in paras 21 to 24 which read as under:-

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“21. We may now discuss the law on the point regarding delay in approaching the court and in particular challenge to a seniority list. The learned Single Judge had placed reliance on a judgment of this Court in the case of Shiba Shankar Mohapatra vs. State of Orissa (supra). Dr. B.S. Chauhan, J., after considering the question of entertaining the petition despite long standing seniority filed at a belated stage discussed more than a dozen cases on the point including Constitution Bench judgments and ultimately in paragraph 30 observed that a seniority list which remains in existence for more than three to four years unchallenged should not be disturbed. It is

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also recorded in paragraph 30 that in case someone agitates the issue of seniority beyond period of three to four years he has to explain the delay and laches in approaching the adjudicatory forum by furnishing satisfactory explanation. Paragraph 30 is reproduced below: -

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“30. Thus in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.”

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22. On the other hand, the Division Bench while shutting out the appellants on the ground of delay relied upon following judgments of this Court.

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Dayaram Asanand Gursahani vs. State of

¶125

Maharashtra and others (1984) 3 SCC 36

¶126

B.S. Bajwa and another vs. State of Punjab and others(1998) 2 SCC 523

¶127

Malcom Lawrence Cecil D’Souza vs. Union of India and others(1976) 1 SCC 599

¶128

R.S. Makashi and others vs. I.M. Menon and

¶129

others (1982) 1 SCC 379.

¶130

23. In the case of Dayaram Asanand Gursahani (supra), there was a delay of 9 years. In the case of B.S. Bajwa (supra), there was a delay of more than a

¶131

¶132

decade. In Malcom Lawrence Cecil D’Souza(supra), the delay was of 15 years and in R.S. Makashi(supra) there was a delay of 8 years. In all these cases, this court has recorded that the delay has not been explained. Shiba Shankar Mohapatra (Supra) is a judgment of 2010, which has laid down that, three to four years would be a reasonable period to challenge a seniority list and also that any challenge beyond the aforesaid period would require satisfactory explanation.

¶133

24. In view of the above legal proposition, we now examine the facts of the present case, firstly, as to whether there was delay of more than three to four years and secondly, if there was delay of more than three to four years, whether the same has been satisfactorily explained.”

¶134

It would be noticed from the narration of the facts as stated above that the petitioners are guilty of delay, laches and acquiescence. All these three concepts have been meticulously dealt with by the Hon’ble Supreme Court in a recent decision in Union of India and others vs. N. Murugesan and others (2022) 2 SCC 25 and it shall be apt to reproduce paras 21 to 25 which read thus:-

¶135

“ Laches

¶136

21.The word laches is derived from the French language meaning “remissness and slackness”. It

¶137

¶138

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.

¶139

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 to 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.

¶140

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

¶141

¶142

the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned alone would be amenable to acquiescence.

¶143

Acquiescence :

¶144

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

¶145

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.”

¶146

¶147

39. Elaborating further on the question of delay,

¶148

laches and acquiescence, the Hon’ble Supreme Court observed as under:-

¶149

“ Article 226 of the Constitution of India

¶150

28 . We would not dwell deep into the extraordinary and discretionary nature of relief under Article 226 of the Constitution of India. This principle is to be extended much more when an element of undue delay, laches and acquiescence is involved. The following decisions of this Court would suffice:

¶151

28.1 UP Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464: (SCC pp. 469-70, paras 8-11)

¶152

“8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya [(1996) 6 SCC 267 : 1996 SCC (L&S) 1488] . In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the state approached this Court and this Court after considering the matter observed as under: (SCC p. 268)

¶153

“Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in subsections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was

¶154

¶155

that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay.”

¶156

9. Similarly in Jagdish Lal v. State of Haryana [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550] this Court reaffirmed the rule that if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542)

¶157

“The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1 : (1995) 31 ATC 813] . The appellants desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.”

¶158

10. In Union of India v. C.K. Dharagupta [(1997) 3 SCC 395 : 1997 SCC (L&S) 821] it was observed as follows: (SCC p. 398, para 9)

¶159

“9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be

¶160

¶161

extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case [R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 17-3-1987] . In view of our finding that the benefit of the judgment of the Tribunal dated 17-3- 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief.”

¶162

11. In State of WB v. Tarun K. Roy [(2004) 1 SCC 347 : 2004 SCC (L&S) 225] their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows: (SCC pp. 359-60, para 34)

¶163

“34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar [State of WB v. Debdas Kumar, 1991 Supp (1) SCC 138 : 1991 SCC (L&S) 841 : (1991) 17 ATC 261]. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make

¶164

¶165

any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.”

¶166

28.2. Eastern Coalfelds Ltd. v. Dugal Kumari , (2008) 14 SCC 295: (SCC pp. 302-04, paras 24-28)

¶167

“24. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant Company. It is well settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extraordinary remedy under Article 226 of the Constitution, that he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant.

¶168

25. Under the English law, an application for leave for judicial review should be made “promptly”. If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant. Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v. Essex County Council [1993 COD 344] .)

¶169

¶170

26. In R. v. Dairy Produce Quota Tribunal, ex p Caswell [(1990) 2 AC 738 : (1990) 2 WLR 1320 : (1990) 2 All ER 434 (HL)] , AC at p. 749, the House of Lords stated [Ed.: Quoting from O'Reilly v. Mackman, (1982) 3 All ER 1124 at p. 1131a-b.] : (All ER p. 441a-b)

¶171

“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.”

¶172

27. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [1874 LR 5 PC 221 : 22 WR 492] , thus: (LR pp. 239-40)

¶173

“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

¶174

¶175

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 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.”

¶176

28. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110 : (1969) 2 SCR 824] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : (1970) 2 SCR 697] this Court ruled that even in cases of violation or infringement of fundamental rights, a writ court may take into account delay and laches on the part of the petitioner in approaching the court. And if there is gross or unexplained delay, the court may refuse to grant relief in favour of such petitioner.”

¶177

(emphasis supplied)

¶178

28.3 . State of J&K v. R.K. Zalpuri, (2015) 15 SCC 602: (SCC pp. 608-11, paras 20-24)

¶179

“20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168] , wherein this Court while dwelling upon jurisdiction under Article 226 of the

¶180

¶181

Constitution, has expressed thus: (SCC p. 175, para 30)

¶182

“30. The Court while exercising its jurisdiction under Article 226 is dutybound to consider whether:

¶183

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

¶184

(b) the petition reveals all material facts;

¶185

(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;

¶186

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

¶187

(e) ex facie barred by any laws of limitation;

¶188

(f) grant of relief is against public policy or barred by any valid law; and host of other factors.”

¶189

21. In this regard reference to a passage from Karnataka Power Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] would be apposite: (SCC p. 325, para 6)

¶190

“6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary

¶191

¶192

powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party.”

¶193

After so stating the Court after referring to the authority in State of M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566] restated the principle articulated in earlier pronouncements, which is to the following effect: (SCC p. 326, para 9)

¶194

“9. … the High Court in 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 and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important

¶195

¶196

factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”

¶197

22. In State of Maharashtra v. Digambar [State of Maharashtra v. Digambar, (1995) 4 SCC 683] a three-Judge Bench laid down that: (SCC p. 692, para 19)

¶198

“19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.”

¶199

23. Recently in Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] , it has been ruled thus: (SCC p. 117, para 16)

¶200

“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

¶201

¶202

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 scrutinise 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.”

¶203

24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of the writ court to exercise the discretion. In Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC

¶204

¶205

(Civ) 491] it has been ruled that: (SCC pp. 359-60, para 12)

¶206

“12. … Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no thirdparty interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.”

¶207

And again: (Tukaram Kana Joshi v. MIDC (2013) 1 SCC 353 (SCC p. 360, para 14)

¶208

“14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay

¶209

¶210

should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Controller of Imports and Exports [Durga Prashad v. Controller of Imports and Exports, (1969) 1 SCC 185] , Collector (LA) v. Katiji [Collector (LA) v. Katiji, (1987) 2 SCC 107 : 1989 SCC (Tax) 172] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598] , Dayal Singh v. Union of India (2003) 2 SCC 593] and Shankara Coop. Housing Society Ltd. v. M. Prabhakar [Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56] .)” (emphasis supplied)

¶211

From the sequence of events, as narrated above,

¶212

it is clearly established on record that at the time when the petitioners sought to agitate the matter, it was only a stale

¶213

¶214

or dead issue and it was more than settled that the issue of limitation or delay and laches has been considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.

¶215

The petitioners are guilty since they have acquiesced in accepting the appointment of the private respondent from the date and day they came to be appointed and did not challenge the same in time. Had the petitioners been vigilant enough, they could have filed writ petitions well in time. The petitioners lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions. Secondly, because of acquiescence and waiver on the part of the petitioners, no relief can be granted to them as this would prejudicially affect rights of the private respondent.

¶216

¶217

In such circumstances, there is no question why the Court should come to the rescue of such persons, when they themselves are guilty of acquiescence and waiver.

¶218

In view of the aforesaid discussion, the preliminary objection raised by the respondent-State is sustained and upheld. Consequently, the instant petition is dismissed not only on the grounds of delay and laches, but also on the grounds of acquiescence and waiver etc., leaving the parties to bear their own costs.

¶219

Pending application(s), if any, also stands disposed of.

¶220

(Tarlok Singh Chauhan) Judge

¶221

(Virender Singh) Judge

¶222

1^st December, 2022. ( krt )

Suresh Kapoor and Others v. State of Hp and Others

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Suresh Kapoor and Others v. State of Hp and Others

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