Chander Lal Negi Vs the State of Hp and Another

“i). That the writ in the nature of mandamus may kindly be issued, directing the respondent department to grant one annual increment to the petitioner which was earned by the petitioner on the post of Tehsildar and was due on 1.11.2007.

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ii). That in the alternative the respondents may kindly be directed to grant him the proportionate amount of increment earned by the petitioner until his joining the promotional post on 18.10.2007.”

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2. Heard learned counsel for the petitioner and

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considered the case file.

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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3. The case set up by the petitioner is that:-

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3(i). He was initially appointed as Patwari and promoted as Tehsildar on ad-hoc basis on 20.06.1997. Petitioner’s services were regularized as Tehsildar on 01.03.2006 in the pay scale of Rs.7000-10980/-. Consequent upon regularization, petitioner’s pay was re-fixed from the date of joining as Tehsildar on ad-hoc basis by notionally adding one increment in the lower pay scale of Naib Tehsildar as per Fundamental Rule 22(1)(a)(1) and granting one promotional increment on promotion as Tehsildar.

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3(ii). As on 01.11.1997, after getting two increments, petitioner’s pay was fixed at Rs.7880/-. Petitioner’s pay was Rs.9750/- in the year 2005.

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3(iii). Petitioner remained posted on the same post of Tehsildar for about 8-9 years, therefore, vide order dated 19.09.2006, he was granted benefit of one proficiency increment after completion of 08 years of service under the Assured Career Progression Scheme. This proficiency increment was granted to the petitioner on 07.07.2005 and his pay reached at Rs.10025/-. After the grant of annual increments on 01.11.2005 and 01.11.2006, petitioner’s pay reached at Rs.10300/- and 10640/-, respectively.

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3(iv). On 06.10.2007, petitioner was promoted as District Revenue Officer (DRO) in the pay scale of Rs.722011660/- on ad-hoc basis. According to the petitioner, ‘ he orally requested his controlling officer that he may be allowed to join the promotional post after 01.11.2007 so that he could get due annual increment on the post of Tehsildar’. Nonetheless, petitioner joined the promotional post of DRO before 01.11.2007, i.e. on 18.10.2007.

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3(v). After joining as DRO on 18.10.2007, petitioner requested respondent No.2 to get his pay fixed as per F.R. 22 by granting him annual increment, which was due on 01.11.2007. Petitioner statedly exercised his option on 28.11.2008.

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3(vi). Consequent upon the ad-hoc promotion of the petitioner as DRO (Class-I Gazetted) in the pay scale of Rs.7220-11660/-, his pay was fixed under F.R. 22 as on 18.10.2007 at Rs.10980/- by giving one promotional increment and the next date of increment was fixed as 01.10.2008 vide order dated 04.02.2008.

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4. Consideration

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Petitioner’s grievance stems from the fact that

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he actually joined the promotional post of DRO on 18.10.2007 and was not allowed to join the promotional

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post after 01.11.2007, thereby denying him annual increment on the post of Tehsildar on 01.11.2007. Petitioner’s grievance as canvassed by his learned counsel is that the annual increment earned by the petitioner on the lower post of Tehsildar, which was due on 01.11.2007, was not granted to him on account of his joining the promotional post on 18.10.2007.

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4(i). Admittedly, the petitioner did not make any written request to the respondents for letting him join the promotional post of DRO after 01.11.2007. Petitioner had himself joined as DRO on 18.10.2007, i.e. before earning increment on the post of Tehsildar. It is his pleaded case that he had only orally requested his controlling officer to let him join the promotional post after 01.11.2007 to enable him to earn the annual increment on the post of Tehsildar. No such representation concerning present grievance of the petitioner ever made to the respondents at the relevant time has been placed on record. Petitioner retired from service on 31.07.2008 on attaining the age of superannuation. He represented to the respondents regarding the grievance raised in this writ petition for the first time on 06.04.2015 and thereafter on 12.12.2015 (Annexure P-5 Colly.). The

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above representations were followed by another

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representation on 18.04.2022 and the legal notice dated 18.10.2022 (Annexure P-6 Colly.). Petitioner has instituted the present writ petition almost 17 years after the accrual of cause of action to him. At this belated stage, his case for allowing him to earn increment as Tehsildar as on 01.11.2007 and then to let him join the promotional post as DRO thereafter cannot be considered. Petitioner’s claim suffers from unexplained delay, laches and is also barred by doctrine of acquiescence.

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4(ii). At this stage, it will be appropriate to refer to Bichitrananda Behera Versus State of Orissa and

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others² . In the said decision, Hon’ble Apex Court held that delay and laches are vital in service matters and can be seen as acquiescence. Belated service related claim is to be rejected on the ground of delay and laches. Laches can be based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. Acquiescence implies active assent and is based upon the rule of estoppel in pais. 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

2 AIR 2023 SC 5064

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destroys the right of the person. Hon’ble Apex Court observed that the claimant therein had delayed pursuing his claim for over 12 years despite being aware of the appointment of another person to the same post of Physical Education Trainer (PET). This prolonged inaction was held to amount to acquiescence, which effectively bars the claim because it implies consent through silence or failure to act. Hon’ble Apex Court explained that while laches refers to an unreasonable delay without active consent, both delay and laches serve the important purpose of preventing stale claims that disrupt settled rights and administrative decisions. In service matters, these doctrines were held to play crucial roles as they protect the stability and finality of administrative decisions. Relevant portion of the judgment reads as under:-

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

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“(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:

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“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

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respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

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(Emphasis supplied)

(B)

21-23.

Acquiescence

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

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concept of acquiescence is to be seen on a case-to-case basis.”

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(C) Chairman, State Bank of India 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 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 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

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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.

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The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 1213).

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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 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 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]

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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, 14^th 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.”

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4(iii). In Marinmoy Maity Versus Chanda Koley &

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Ors.³ , Hon’ble Apex Court held that an applicant who approaches the Court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from deep slumber ought not to be granted the extraordinary relief by the writ Courts. Delay or laches is

3AIR 2024 SC 2717

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one of the factors, which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action. Relevant portion from the decision is as under: -

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“9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

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10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described

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in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.

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11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and laches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal and others v. State of W.B and others. (2009) 1 SCC 768, has held to the following effect:-

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“56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

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57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal

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Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , Durga Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC185] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84]. 58. There is no upper limit and there is no lower limit also when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose."

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The ratio of above decisions in Bichitrananda

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Behera² and Marinmoy Maity³ apply to the facts of the instant case. The claim of the petitioner at this belated stage suffers from unexplained delay, laches and also acquiescence.

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5. For the foregoing reasons, I do not find any merit in the instant writ petition. The same is accordingly dismissed alongwith pending miscellaneous application(s),

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if any.

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Jyotsna Rewal Dua Judge

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December 16, 2025 Mukesh

Chander Lal Negi v. the State of Hp and Another

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Chander Lal Negi v. the State of Hp and Another

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