1
2024:CGHC:33275
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPS No. 5586 of 2014
S.P.Pandey S/o Shri Govind Pandey Aged About 65 Years R/o 25 Mig
Indravati Colony Raipur P.S. and District Raipur, Chhattisgarh
... Petitioner
versus
1. State of Chhattisgarh Through The Secretary Science and Technology
Department, Mantralaya New Raipur P.S. Rakhi Distrist Raipur,
Chhattisgarh
2. The Chhattisgarh Council of Science and Technolony, through the
Director, Indravati Colony Raipur Distt. Raipur C.G.
3. Anil Kumar Pathak Senior Scientist Chhattisgarh Council Of Science And
Technology Indravati Colony Raipur Distt. Raipur C.G.
... Respondents
(Cause Title is taken from Case Information System)
For Petitioner : Mr. Prashant Singh, Advocate holding the
brief of Mr. Prateek Sharma, Advocate
For State/Respondent No. 1 : Ms. Nupoor Sonkar, Panel Lawyer
For Respondents No. 2 & 3 : Dr. Saurabh Pande, Advocate
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
30 .08.2024
1. By way of this petition, the petitioner has sought the following relief(s):-
“10.1 That, this Hon’ble court may kindly be
pleased to direct the respondents to promote the
petitioner in the post of Scientist form the date of
promotion of respondent No. 3 i.e. 14.10.2004,
with all consequential benefits and arrears of
salary, with interest at the rate of 18% per annum.
2
10.2 That, this Hon’ble Court may kindly be
pleased to set-aside the impugned gradation list
dated 01.07.2014 (Annexure P/1) to the extent of
placement of respondent No. 3 over and above
the petitioner and further be pleased to direct the
respondents to issue fresh gradation list, placing
the petitioner over and above the respondent no.
3.
10.3 That, this Hon’ble Court may kindly be
pleased to direct the respondent no. 2 to pay two
increments from the date of allocation of petitioner
in the State of Chhattisgarh and also to grant two
months advance salary, as per the entitlement of
petitioner, in the interest of justice.
10.4 That, this Hon’ble Court may kindly be
pleased to direct the respondents to fix the pay
scale/salary of the petitioner by granting all the
consequential benefits.
10.5 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 petitin
may be given.”
2. Learned counsel for the petitioner submitted that junior to the petitioner,
respondent No. 3/Anil Kumar Pathak was promoted to the post of Scientist
from the post of Cartographer on 14.10.2004 and the name of the
petitioner was not considered.
3. On the other hand, the learned counsel appearing for the Respondents
would oppose. Dr. Pande submitted that the petitioner is challenging the
promotion of respondent No. 3 dated 14.10.2004 by filing this petition in
the year 2014 and thus, there is a delay of more than 10 years and the
same has not been explained.
4. I have heard learned counsel for the parties.
5. Admittedly, the petitioner has challenged the promotion of respondent No.
3/Anil Kumar Pathak to the post of Scientist after 10 years and there is no
3
explanation in this regard.
6. The Hon'ble Supreme Court in the matter of Chennai Metropolitan Water
Supply and Sewerage Board and Others Vs. T.T. Murali Babu reported
in (2014) 4 SCC 108 held as under:-
‘17. In the case at hand, though there has been four
years’ delay in approaching the court, yet the writ court
chose not to address the same. It is the duty of the
court to scrutinize whether such enormous delay is to
be ignored without any justification. That apart, in the
present case, such belated approach gains more
significance as the respondent employee being
absolutely careless to his duty and nurturing a
lackadaisical attitude to the responsibility had remain
unauthorizedly absent on the pretext of some kind of ill
health. We repeat at the cost of repetition that
remaining innocuously oblivious to such delay does not
foster the cause of justice. On the contrary, it brings in
injustice, for it is likely to affect others. Such delay may
have impact on others’ ripened rights and may
unnecessarily drag others into litigation which in
acceptable realm of probability, may have been treated
to have attained finality. A court is not expected to give
indulgence to such indolent persons -who compete with
“Kumbhakarna” or for that matter “Rip Van Winkle” . In
our considered opinion, such delay does not deserve
any indulgence and on the said ground alone the writ
court should have thrown the petition overboard at the
very threshold.
7. Recently, the Apex Court in the matter of Rushibhai
Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation reported in
2022 SCC Online SC 64 held as under:-
“9. The doctrine of delay and laches, or for that
matter statutes of limitation, are considered to be
statutes of repose and statutes of peace, though
some contrary opinions have been expressed (in
Nav Rattanmal Vs. state of Rajasthan, AIR 1961
SC 1704). The courts have expressed the view that
the law of limitation rests on the foundations of
greater public interest for three reasons, namely,
(a) that long dormant claims have more of cruelty
than justice in them; (b) that a defendant might
have lost the evidence to disapprove a stale claim;
and (iii) that persons with good causes of action
(who are able to enforce them) should pursue them
with reasonable diligence (State of Kerala Vs. V.R.
Kalliyanikutty, (1999) 3 SCC 657 relying on
Halsbury’s Laws of England, 4th Edn., Vol. 28, para
605; Halsbury’s Laws of England , Vol. 68 (2021)
para 1005. Equally, change in de facto position or
character, creation of third party rights over a
4
period of time, waiver, acquiesce, and need to
ensure certitude in dealings, are equitable public
policy considerations why period of limitation is
prescribed by law. Law of limitation does not apply
to writ petitions, albeit the discretion vested with a
constitutional court is exercised with caution as
delay and laches principle is applied with the aim to
secure the quiet of the community, suppress fraud
and perjury, quicken diligence, and prevent
oppression.(see Popat and Kotecha Property Vs.
State Bank of India Staff Association (2005) 7 SCC
510).Therefore, some decisions and judgments do
not look upon pleas of delay and laches with
favour, especially and rightly in cases where the
persons suffer from adeptness, or incapacity to
approach the courts for relief. However, other
decisions, while accepting the rules of limitation as
well as delay and laches, have observed that such
rules are not meant to destroy the rights of the
parties but serve a larger public interest and are
founded on public policy. There must be a lifespan
during which a person must approach the court for
their remedy. Otherwise, there would be unending
uncertainty as to the rights and obligations of the
parties. (See N. Blarkrishnan Vs. M. Krishnamurthy,
(1998)7 SCC 123. Referring to the principle of
delay and laches, this Court, way back in Moons
Mils Ltd Vs. M.R. Mehar, President, Industrial
Court, Bombay AIR 1967 SC 1450, had referred to
the view expressed by Sir Barnes Peacock in The
Lindsay Petroleum Company and Prosper
Armstrong Hurd, Abram Farewell, and John Kemp,
(L.R.) 5 P.C.221 in the following words:
“ 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 this 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 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 relates to the remedy.”
8. The Hon’ble Supreme Court in the matter of Bichitrananda Behera Vs.
State of Orissa and others reported in 2023 Livelaw (SC) 883 under
5
relevant para 21 held as under:-
“21. Profitably, we may reproduce relevant
passagesfrom certain decisions of this Court:
(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:
“To summarise, normally, a belated service related
claim will be rejected on the ground of delay and
laches (where remedy is sought by filing a writ
petition) or limitation (where remedy is sought by an
application to the Administrative Tribunal). One of the
exceptions to the said rule is cases relating to a
continuing wrong. Where a service related claim is
based on a continuing wrong, relief can be granted
even if there is a long delay in seeking remedy, with
reference to the date on which the continuing wrong
commenced, if such continuing wrong creates a
continuing source of injury. But there is an exception
to the exception. If the grievance is in respect of any
order or administrative decision which related to or
affected several others also, and if the reopening of
the issue would affect the settled rights of third
parties, then the claim will not be entertained. For
example, if the issue relates to payment or refixation
of pay or pension, relief may be granted in spite of
delay as it does not affect the rights of third parties.
But if the claim involved issues relating to seniority or
promotion, etc., affecting others, delay would render
the claim stale and doctrine of laches/limitation will be
applied. Insofar as the consequential relief of recovery
of arrears for a past period is concerned, the
principles relating to recurring/successive wrongs will
apply. As a consequence, the High Courts will restrict
the consequential relief relating to arrears normally to
a period of three years prior to the date of filing of the
writ petition.” (emphasis supplied)
(B) Union of India v N Murugesan, (2022) 2 SCC 25:
"Delay, laches and acquiescence
20. The principles governing delay, laches, and
acquiescence are overlapping and interconnected on
many occasions. However, they have their distinct
characters and distinct elements. One can say that
delay is the genus to which laches and acquiescence
are species. Similarly, laches might be called a genus
to a species by name acquiescence. However, there
may be a case where acquiescence is involved, but
not laches. These principles are common law
principles, and perhaps one could identify that these
principles find place in various statutes which restrict
the period of limitation and create non consideration
of condonation in certain circumstances. They are
bound to be applied by way of practice requiring
prudence of the court than of a strict application of
law. The underlying principle governing these
concepts would be one of estoppel. The question of
prejudice is also an important issue to be taken note
of by the court.
Laches
6
21. The word “laches” is derived from the French
language meaning “remissness and slackness”. It
thus involves unreasonable delay or negligence in
pursuing a claim involving an equitable relief while
causing prejudice to the other party. It is neglect on
the part of a party to do an act which law requires
while asserting a right, and therefore, must stand in
the way of the party getting relief or remedy.
22. Two essential factors to be seen are the length of
the delay and the nature of acts done during the
interval. As stated, it would also involve acquiescence
on the part of the party approaching the court apart
from the change in position in the interregnum.
Therefore, it would be unjustifiable for a Court of
Equity to confer a remedy on a party who knocks its
doors when his acts would indicate a waiver of such a
right. By his conduct, he has put the other party in a
particular position, and therefore, it would be
unreasonable to facilitate a challenge before the
court. Thus, a man responsible for his conduct on
equity is not expected to be allowed to avail a remedy.
23. A defence of laches can only be allowed when
there is no statutory bar. The question as to whether
there exists a clear case of laches on the part of a
person seeking a remedy is one of fact and so also
that of prejudice. The said principle may not have any
application when the existence of fraud is pleaded
and proved by the other side. To determine the
difference between the concept of laches and
acquiescence is that, in a case involving mere laches,
the principle of estoppel would apply to all the
defences that are available to a party. Therefore, a
defendant can succeed on the various grounds raised
by the plaintiff, while an issue concerned alone would
be amenable to acquiescence.
Acquiescence
We have already discussed the relationship between
acquiescence on the one hand and delay and laches
on the other.
25. Acquiescence would mean a tacit or passive
acceptance. It is implied and reluctant consent to an
act. In other words, such an action would qualify a
passive assent. Thus, when acquiescence takes
place, it presupposes knowledge against a particular
act. From the knowledge comes passive acceptance,
therefore instead of taking any action against any
alleged refusal to perform the original contract,
despite adequate knowledge of its terms, and instead
being allowed to continue by consciously ignoring it
and thereafter proceeding further, acquiescence does
take place. As a consequence, it reintroduces a new
implied agreement between the parties. Once such a
situation arises, it is not open to the party that
acquiesced itself to insist upon the compliance of the
original terms. Hence, what is essential, is the
conduct of the parties. We only dealt with the
distinction involving a mere acquiescence. When
acquiescence is followed by delay, it may become
7
laches. Here again, we are inclined to hold that the
concept of acquiescence is to be seen on a case-to-
case basis.” (emphasis supplied)
(C) Chairman, State Bank of India v M J James,
(2022) 2 SCC 301:
"36. What is a reasonable time is not to be put in a
straitjacket formula or judicially codified in the form of
days, etc. as it depends upon the facts and
circumstances of each case. A right not exercised for
a long time is nonexistent. Doctrine of delay and
laches as well as acquiescence are applied to 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.
Xxx
38. In Ram Chand v. Union of India [Ram Chand v.
Union of India, (1994) 1 SCC 44] and State of U.P. v.
Manohar [State of U.P. v. Manohar, (2005) 2 SCC
126] this Court observed that if the statutory authority
has not performed its duty within a reasonable time, it
cannot justify the same by taking the plea that the
person who has been deprived of his rights has not
approached the appropriate forum for relief. If a
statutory authority does not pass any orders and
thereby fails to comply with the statutory mandate
within reasonable time, they normally should not be
permitted to take the defence of laches and delay. If at
all, in such cases, the delay furnishes a cause of
action, which in some cases as elucidated in Union of
India v. Tarsem Singh [Union of India v. Tarsem Singh,
(2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be
continuing cause of action.The State being a virtuous
litigant should meet the genuine claims and not deny
them for want of action on their part. However, this
general principle would not apply when, on
consideration of the facts, the court concludes that the
respondent had abandoned his rights, which may be
either express or implied from his conduct.
Abandonment implies intentional act to acknowledge,
as has been held in para 6 of Motilal Padampat Sugar
8
Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar
Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 :
1979 SCC (Tax) 144] Applying this principle of
acquiescence to the precept of delay and laches, this
Court in U.P. Jal Nigam v.Jaswant Singh [U.P. Jal
Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007)
1 SCC (L&S) 500] after referring to several
judgments, has accepted the following elucidation in
Halsbury's Laws of England : (Jaswant Singh case
[U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC
464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71,
paras 1213)
12. The statement of law has also been summarised
in Halsbury's Laws of England, Para 911,p. 395 as
follows:
‘In determining whether there has been such delay as
to amount to laches, the chief points to be considered
are:
(i) acquiescence on the claimant's part;and
(ii) any change of position that has occurred on the
defendant's part.
9. Acquiescence in this sense does not mean standing by
while the violation of a right is in progress,but assent after
the violation has been completed and the claimant has
become aware of it. It is unjust to give the claimant a remedy
where, by his conduct, he has done that which might fairly
be regarded as equivalent to a waiver of it; or where by his
conduct and neglect, though not waiving the remedy, he has
put the other party in a position in which it would not be
reasonable to place him if the remedy were afterwards to be
asserted. In such cases lapse of time and delay are most
material. Upon these considerations rests the doctrine of
laches.’
13. In view of the statement of law as summarised
above, the respondents are guilty since the
respondents have acquiesced in accepting the
retirement and did not challenge the same in time. If
they would have been vigilant enough, they could
have filed writ petitions as others did in the matter.
Therefore, whenever it appears that the claimants lost
time or whiled it away and did not rise to the occasion
in time for filing the writ petitions, then in such cases,
the court should be very slow in granting the relief to
the incumbent. Secondly, it has also to be taken into
consideration the question of acquiescence or waiver
on the part of the incumbent whether other parties are
going to be prejudiced if the relief is granted. In the
present case, if the respondents would have
challenged their retirement being violative of the
provisions of the Act, perhaps the Nigam could have
taken appropriate steps to raise funds so as to meet
the liability but by not asserting their rights the
respondents have allowed time to pass and after a
lapse of couple of years, they have filed writ petitions
claiming the benefit for two years. That will definitely
require the Nigam to raise funds which is going to
have serious financial repercussions on the financial
9
management of the Nigam. Why should the court
come to the rescue of such persons when they
themselves are guilty of waiver and acquiescence?”
39. Before proceeding further, it is important to clarify
distinction between “acquiescence” and “delay and
laches”. Doctrine of acquiescence is an equitable
doctrine which applies when a party having a right
stands by and sees another dealing in a manner
inconsistent with that right, while the act is in progress
and after violation is completed, which conduct
reflects his assent or accord. He cannot afterwards
complain. [See Prabhakar v. Sericulture Deptt., (2015)
15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see
Gobinda Ramanuj Das Mohanta v. Ram Charan Das,
1925 SCC OnLine Cal 30 : AIR 1925 Cal 1107] In
literal sense, the term acquiescence means silent
assent, tacit consent, concurrence, or acceptance,
[See Vidyavathi Kapoor Trust v. CIT, 1991 SCC
OnLine Kar 331 : (1992) 194 ITR 584] which denotes
conduct that is evidence of an intention of a party to
abandon an equitable right and also to denote
conduct from which another party will be justified in
inferring such an intention. [See Krishan Dev v. Ram
Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34]
Acquiescence can be either direct with full knowledge
and express approbation, or indirect where a person
having the right to set aside the action stands by and
sees another dealing in a manner inconsistent with
that right and in spite of the infringement takes no
action mirroring acceptance. [See “Introduction”, U.N.
Mitra, Tagore Law Lectures — Law of Limitation and
Prescription, Vol. I, 14th Edn., 2016.] However,
acquiescence will not apply if lapse of time is of no
importance or consequence.
40. Laches unlike limitation is flexible. However, both
limitation and laches destroy the remedy but not the
right. Laches like acquiescence is based upon
equitable considerations, but laches unlike
acquiescence imports even simple passivity. On the
other hand, acquiescence implies active assent and is
based upon the rule of estoppel in pais. As a form of
estoppel, it bars a party afterwards from complaining
of the violation of the right. Even indirect
acquiescence implies almost active consent, which is
not to be inferred by mere silence or inaction which is
involved in laches. Acquiescence in this manner is
quite distinct from delay. Acquiescence virtually
destroys the right of the person. [See Vidyavathi
Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 :
(1992) 194 ITR 584] Given the aforesaid legal
position, inactive acquiescence on the part of the
respondent can be inferred till the filing of the appeal,
and not for the period post filing of the appeal.
Nevertheless, this acquiescence being in the nature
of estoppel bars the respondent from claiming
violation of the right of fair representation.”
10. It is the duty of the court to scrutinize whether such enormous delay is to
10
be ignored without any justification. Remaining innocuously oblivious to
such delay does not foster the cause of justice. On the contrary, it brings in
injustice, for it is likely to affect others. Such delay may have impact on
others’ ripened rights and may unnecessarily drag others into litigation
which in acceptable realm of probability, may have been treated to have
attained finality. A court is not expected to give indulgence to such indolent
persons, such delay does not deserve any indulgence and on the said
ground alone this Court deems it appropriate to dismiss this petition at the
very threshold. The doctrine of delay and laches, or for that matter statutes
of limitation are considered to be statutes of repose and statutes of peace.
There must be a lifespan during which a person must approach the court
for their remedy. Otherwise, there would be unending uncertainty as to the
rights and obligations of the parties.
11. Considering the facts and circumstances of the present case in light of the
judgments passed by the Hon'ble Supreme Court in the matters of
Chennai Metropolitan Water Supply (supra), Rushibhai Jagdishbhai
Pathak (supra) and Bichitrananda Behera (supra), it is quite vivid that
the petitioner has approached this Court after a delay of 10 years and in
para 7 of the writ petition, it has been stated that there is no delay in filing
the instant petition. The petitioner utterly failed to explain the delay caused
in filing the instant petition. Therefore, relief 10.1 sought by the petitioner is
hereby rejected.
12. With regard to prayer clause No. 10.2, the learned counsel for the
petitioner submitted that in the gradation list, the name of the petitioner
was placed at serial No. 6, whereas, he is senior to respondent No. 3, and
the respondent authorities ought to have placed the name of the petitioner
above respondent No. 3.
13. On the other hand, Dr. Pande stated that the petitioner joined the services
11
in the year 2009, whereas, respondent No. 3 joined services at the time of
the bifurcation of the State of M.P. and Chhattisgarh, and therefore,
respondent No. 3 was promoted to the post of Scientist in the year 2004
and placed above the petitioner.
14. Ms. Nupoor Sonkar, Panel Lawyer appearing for the State would support
the contention made by Mr. Pande.
15. Taking into consideration the submissions made by learned counsel for the
parties, the petitioner is permitted to make a representation before the
respondent authorities claiming therein seniority above respondent No. 3,
and in turn, the authority concerned is directed to decide the same
expeditiously.
16. With regard to prayer clause No. 10.3, in the absence of any circular or
policy of the State Government no order can be passed for the grant of
two increments to the petitioner.
17. For relief clause No. 10.4, the petitioner would be at liberty to make a
representation before the respondent authority, which will be decided
strictly in accordance with the law expeditiously.
18. With the aforesaid observation(s) and direction(s), the instant petition is
disposed of.
Sd/-
(Rakesh Mohan Pandey)
Judge
$iddhant