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Judgment
PROTIK PRAKASH BANERJEE, J
This appeal has been preferred by the school authorities against the judgment and order dated December 7, 2016 passed in W.P. No.15316 (W) of
2016 [Mrs. Hasi Sen and Othersâ€"vâ€"State of West Bengal and Others]. The learned single Judge disposed of the writ petition by issuing a writ of
mandamus to implement the directive dated August 31, 2012 issued by the authorities of the State of West Bengal with a rider that if the school
authorities failed to implement it in terms of the order impugned, the Deputy Director of School Education (Anglo Indian Schools), the present seventh
respondent, would take appropriate penal action against the school authorities.
The second appellant is an educational institution established and administered by a religious minority institution. It inter alia imparts religious
instructions thereat. The other appellants are the religious institution and the authorities of the said second appellant. The writ petitioners/the present
first to fourth respondents (hereafter the writ petitioners) are the teachers at the said school. They came to the writ court with a petition affirmed on
July 7, 2015, complaining that the school authorities had not paid the arrears payable to them under the Revision of Pay and Allowances Rules, 2009
(hereinafter “ROPA 2009â€) and also that the State of West Bengal and it’s instrumentalities were not taking steps against the school
authorities for violating the orders passed by them including the direction dated August 31, 2012 passed by the present respondent no.7. The principal
prayers made in the writ petition are as follows: -
“a. A writ of/in the nature of Mandamus commanding the respondent authorities and each of them to withdraw, rescind and/or recall any order that
might have been passed against the petitioners directing non-payment of arrears sin terms of the ROPA 2009 and any action subsequent thereto and
in consequence thereof.
b. A writ of/in the nature of Mandamus commanding the respondent authorities and each of them to make payment of the arrears for the period from
April 01, 2008 to March 31, 2009 along with interest at the applicable rate for the period from April 1, 2009 till the realization of the same.
c. A writ of/in the nature of Mandamus commanding the respondent authorities and each of them more particularly the respondents no.1 to 4 to initiate
appropriate proceeding against the school authorities in terms of law for violating the orders passed by them.â€
The said directive dated August 31, 2012 is at page 94 of the application for stay, CAN 123 of 2017. By the said directive, addressed to the fourth
appellant, the principal of the second appellant, the seventh respondent stated as follows: -
“Sub: Payment of arrears to the teaching & non-teaching staff of St. Tereasa’s Secondary School, 72, Diamond Harbour Road, Kolâ€"23,
from 1st April, 2008 to 31st March, 2009.
Re: Her Memo no. STS/1106/12 dt. 31.1.2012.
In reference to the subject mentioned above, the undersigned has to inform that the teaching & non-teaching staff of her school have not been paid
arrear amount of pay related to the 6th Pay Commission for the period from 1st April, 2008 to 31st March, 2009 according to Ropa, 2009 excluding
the admissible DA component released by the Dist. Inspector of Schools (SE) Kol. Once again it may be reminded that all schools recognized under
the Chapter-IV of the Code of Regulation for Anglo- Indian & Other Schools, 1993 shall pay their teaching and non-teaching staff’s pay, house
rent, medical allowances, gratuity and C.P.F. in the scales not lower than those approved by the State Govt. in respect of Govt. aided schools affiliated
to the West Bengal Board of Secondary Education or as prescribed under the relevant Provident Fund Act/Rules of Govt. of India.
St. Teresa’s Secondary School, 72, Diamond Harbour Road, Kolâ€"23, is getting D.A. from the Govt. time to time on the revised basic pay
according to Ropa, 2009 but the teaching & non-teaching staff have not been paid arrears of pay for the period from 1.4.2008 to 31.3.2009. She is
also reminded that to remain a D.A. getting school, the school authority needs to obey the above-mentioned code of Regulations, 1993. Under the
circumstances, she is requested to take necessary steps to pay the arrears to the teaching & non-teaching staff of her school for the said period in
accordance with the provision as laid down in chapterâ€"IV of Code of Regulations for Anglo-Indian and other listed schools, 1993. This may be
treated as urgent.†(emphasis supplied by me).
The above directive dated August 31, 2012 was a sequel to an earlier direction dated November 24, 2011 issued by the seventh respondent to the
same fourth appellant asking her to take necessary action to pay such arrears immediately, with which the fourth appellant had not complied.
Instead, she had, by a letter dated January 31, 2012 replied to the seventh respondent explaining why it was not possible for the school to pay the
arrears of the amounts claimed by the writ petitioners under the ROPA 2009, though the current salaries at the same scale as under the said ROPA,
2009 were being paid to them. This had been referred to in the directive dated August 31, 2012 as above. The defence that the school took can be
summarized as follows: -
as a religious minority educational institution the school was aware of its duties of not paying its teaching and non-teaching staff at a scale lower than
that of similarly situated employees in secondary schools affiliated to the same Board of Education, but since apart from Dearness Allowance which
the Government gave, everything else came from the own sources of the school, particularly fees generated from its students, the school was not in a
position to pay the arrears of pay caused due to ROPA, 2009 without raising the fees beyond the capacity of the middle-class from whom its students
primarily hailed.
Perhaps it will be instructive to find out exactly what Chapter IV of the Code of Regulations for Anglo-Indian & Other Schools, 1993 (hereinafter
the “AIS Codeâ€) requires an educational institution established and administered by a religious minority to do, in this regard. Since it is not in
dispute that the second appellant is covered by the said regulations, I go straight to Chapter IV and more particularly regulation 20, which reads as
follows: -
“Payment of salary, etc: All schools recognized under this Code shall pay their teaching and non-teaching staff pay, house rent and medical
allowances, Gratuity and Contributor Provident Fund in the scales not lower those approved by the State Government in respect of Government aided
schools affiliated to the West Bengal Board of Secondary Education or as prescribed by the relevant Provident Fund Act/rules of the Government of
India.â€
Mr. Jha, Learned counsel appearing for the writ petitioners further submitted that the appropriate penal action that the seventh respondent was
required to take against the appellant school for not obeying the directive dated August 31, 2012 is to be found under Regulation 13(a), which is set out
hereinbelow: -
“If, at any time, the D.D, S.E. considers on account of any deficiencies or any defects that any school no longer fulfils the conditions for
recognition laid down in this Code, he may, after giving an opportunity to the school to offer its explanation or defence, if any, recommend to the State
Board the withdrawal of recognition of the school, giving reasons of such withdrawal of recognition. Provided that if the deficiencies or defects of the
school are capable of immediate or early removal, the State Board may recommend suspension of recognition for such period as it may think fit, to
enable the managing committee of the school to remedy the deficiencies or defects to the satisfaction of the State Board.â€
That brings us to two overwhelming questions. The first is, why exactly were the arrears alleged to be payable under the ROPA, 2009 from April 1,
2008 to March 31, 2009? The second is why have the appellants appealed against the command of the Court to comply with the direction dated
August 31, 2012 when they never challenged the direction of the Government authorities before the command was issued by the Court? The second
question may be summarized as whether the appellants have locus to maintain the appeal.
To understand the gamut of the controversy, I will have to take us back to ROPA, 2009 and more particularly, paragraph 12 of the ROPA Rules,
2009, relating to payment of arrears. Rule 12 of the said ROPA, 2009, provides as follows: -
“Payment of arrears: â€" (1) Notwithstanding anything contained elsewhere in these rules, or in any other rules for the time being in force, no
arrears of pay to which a Government employee may be entitled in respect of the period from the 1st day of January, 2006 to the 31st day of March,
2006, shall be paid to the Government employee. (2) (a) The arrears of pay to which the Government employee, may be entitled to in respect of the
period from the 1st day of April, 2008 to the 31st day of March, 2009, shall be paid in three consecutive equal yearly installments in cash from the year
2008â€" 2010.
(b) A Government employee, who retired on any date between the 1st day of January, 2008 to the 31st day of March, 2008, shall not be entitled to any
arrears of pay for the period upto 31st of March, 2008. A Government employee, who retired between the periods from the 31st day of March, 2008
to the 1st day of April, 2009, but before publication of these rules in the Official Gazette, shall receive arrears pay for the period from the 1st April,
2008 to the date of his retirement, in cash.
Explanation.- For the purpose of this rule, ""arrears of pay"", in relation to a Government employee, means the difference between the aggregate of pay
and allowances to which he is entitled on account of the revision of pay and allowances under these rules for the period in question and the aggregate
of the pay and allowances to which he would have been entitled for that period had his pay and allowances not been revised. The revised allowance
(except for dearness allowance and non-practicing allowance) shall be payable only with effect from the 1st day of April, 2009.
Note- Non-practicing allowance at the new rate on the revised pay structure shall be admissible to the officers of the West Bengal Homeopathic
Educational Service, the West Bengal Ayurvedic Educational Service, the West Bengal Homeopathic Health Service and the West Bengal Ayurvedic
Health Service with effect from 1st day of April, 2009.â€
The case of the writ petitioners is that the appellants are duty bound to pay the said arrears regardless of whether they stopped drawing dearness
allowance from the State of West Bengal, since the school had, admittedly, drawn dearness allowance till January, 2013, which included the dearness
allowance for the period between April 21, 2008 and March 31, 2009. In effect, therefore the writ petitioners are seeking that the arrears â€" an
amount of money which was calculated pursuant to the orders of this court together with interest and deposited in court under its earlier orders â€
are paid to them and in default recognition of the school be withdrawn or suspended. Therefore, why the arrears were payable, the first overwhelming
question in paragraph 8, is answered by the ROPA, 2009.
From the records before this court it further appears that there are other disputes between the writ petitioners and/or teachers of the appellant
no.2 and the appellant no.2. These ought not to detain us for long, except that we note that the bad blood between the teachers and the institution
ultimately hurt only the students.
The appellants have challenged the order impugned firstly on the ground that the writ petition seeking in effect a money relief, suffers from
unexplained delay in a case where the delay is unreasonable and ordinarily the outermost limit of reasonable delay is the time granted by the statute of
limitation to file a suit for the cause of action and the present writ petition is beyond that period. If the appeal succeeds on this point, the other grounds
may not need to be decided, though I shall advert to them too.
Let me test this primary ground of appeal. A plain reading of Rule 12 of the ROPA, 2009 shows that the arrears of the revised pay were to be
paid in three consecutive equal yearly installments from April 1, 2009 to March 31, 2012. This does not mean that the entire sum was available to be
paid within three years â€" it means very precisely that one third of the entire sum payable was to be paid by March 31 of the year concerned, for
three years; the first installment of one third by March 31, 2010, the second installment of one third by March 31, 2011, and the last installment of one
third by March 31, 2012. Once there was a default in respect of one year, the default was complete on the expiry of March 31 of that year. If a civil
suit for recovery of that installment which fell in default for one year as a statutory due was to be instituted, it had to be done within 3 years from
March 31 of that year under Article 7 of the Schedule to the Limitation Act, 1963, since wages in that Article (corresponding to Article 102 of the Act
of 1908] was held to include “salary†in the case of Madhav Laxman Vaikuntheâ€"vâ€"The State of Mysore, reported in AIR 1962 SC 8 (last
paragraph). Thus, the limitation to claim the first two installments expired, in case of a civil suit, with the expiry of March 31, 2013 and March 31,
2014. The limitation to claim the last installment expired on March 31, 2015. The writ petitioners affirmed their writ petition on July 7, 2015. Therefore,
it was beyond the period of three years from the date when the period of limitation expired.
In order to repel this defence of the appellants on the basis of the plain words of the statute and pure arithmetical calculation, the writ
petitioners/respondents no.1 to 4 have taken refuge behind Sections 18 and 22 of the Limitation Act, 1963 and a few judgments which they contend
support their respective cases of “acknowledgement of liability†and “continuing breach of contract or continuing tortâ€, and a few documents,
the first of which is the letter dated August 31, 2012 (referred to in paragraph 3 of this judgment), the second of which is a strange collection of papers
starting from page 215 of CAN 123 of 2017, the first page of which is dated December 13 2012 and signed by the appellant no.4, the second page of
which is undated and unsigned and the third page of which is signed by the appellant no.4 but undated and the three do not seem to be connected even
by internal page numbers, apart from representations made by the writ petitioners. I will deal with each of these in turn.
Let me first see what Sections 18 and 22 of the Limitation Act, 1963 say: -
“Section 18 - Effect of acknowledgment in writing: (1) Where, before the expiration of the prescribed period for a suit or application in respect of
any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom
such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the
time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the
provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.
Explanation.--For the purposes of this section,--
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment,
delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a
claim to set-off, or is addressed to a person other than a person entitled to the property or right;
(b) the word ""signed"" means signed either personally or by an agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.
Section 22 - Continuing breaches and torts : In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of
limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.â€
Let me see whether the letter dated August 31, 2012 satisfies the tests given in Section 18 of the Act of 1963. It may have been made within 3
years from March 31, 2012, (so far as the last installment is concerned) but it is not signed by the appellant no.4 or any of the appellants, against
whom the right is claimed by the writ petitioners. It is signed by the respondent no. 7. The appellants do not derive their liability to make payment to
the writ petitioners/respondents no.1 to 4 through the respondent no. 7; nor do the appellants derive the property (being the arrears of salary) from the
respondent no. 7. The liability arises out of a statutory rule. Therefore, it is not an acknowledgment of liability in writing signed by anyone within the
meaning of Section 18 of the Act of 1963 which would bind the appellants or any of them, even after considering the explanation. The letter dated
January 31, 2012, though in writing and signed by the appellant no.4, does not extend the limitation to beyond March 31, 2015. Therefore, neither of
these letters extend the period of limitation as contended by the writ petitioners/respondents no.1 to 4.
Next let me examine the documents at pages 215, 216 and 217 of CAN 123 of 2017. The first of these, at page 215, shows that it is written on the
letterhead of the appellant no.2, and signed by the appellant no.4, and dated at the top as a principal’s report on the teachers’ cease
work/strike on December 13, 2012. It contains a sort of a prefatory statement that the principal put up a notice on the teachers notice board, the
resolutions of the managing committee meeting of the appellant no.2 held on December 12, 2012 at 7:30 pm and the contents of the notice were set
out, as “Notice to the Teachers†in numbered paragraphs from 1 to 5. This page ends without showing that it was continued on any next page.
The document is complete in itself. The next page, page 216, is undated and unsigned. This, however, contains in its second paragraph, the brief
mention as part of the second sentence that “the teachers came inside the principal’s office demanding to issue in writing that the management
is not willing to pay them the demanded arrears, which the principal did not oblige because this decision was resolved in the managing committee
meetings of the past three years.â€
The third page, once again, is undated but signed by the appellant no.4, and shows what happened after the school hours, at about 2:45 pm. While the
first page may not be addressed to the writ petitioners/respondents no.1 to 4, it certainly is addressed to the teachers, because it was allegedly posted
on the Teachers’ Notice Board. Yet, it contains neither denial of liability nor acknowledgement of the liability within the meaning of the
Explanation to Section 18. Again, it does not appear to me that the unsigned page no. 216 can be held to be part of the notice to the teachers, within
the meaning of Section 18 of the Act of 1963. Section 18(2) of the Act of 1963 only allows oral evidence to be given as to the date of an undated
document, not that oral evidence of the contents of an unsigned document, which is not paginated, can be given that it was part of a notice which is
signed on every page other than that page, and which does not appear from the paragraph-formatting scheme to be a continuation of the signed page
which precedes it. Page 216 does not even contain any denial of the liability, but only the demand of the teachers for issuing a letter that the
management is not willing to pay the demanded arrears which was admittedly not given. Had such a letter of refusal been issued, it would have been
an acknowledgment of liability. It was not. it does not appear to me that page 216 or even 215 or 217 of CAN 123 of 2017 can be brought within the
four corners of Section 18 of the Act of 1963 even if the language of that section and its explanation is stretched. It would mean reading into the
statute words which are not there. Quite apart, the writ court cannot normally take oral evidence. No such circumstance has been pleaded or
established here which would impel us to resort to witness action.
That brings me to Section 22. Is the non-payment of the arrears of the benefits under the pay revision a continuing breach of contract or a
continuing tort? I have already indicated that non-payment of the arrears of benefits under a pay revision is a “money claimâ€. A breach of
contract or a tort, essentially, is a “wrongâ€. It is not a right. Whereas Section 18 of the Act of 1963 is for the enforcement of a right, (from which
the liability flows), Section 22 is for undoing or compensating for a wrong, or for stopping the wrong from continuing. Therefore, it must be a
continuing “wrong†for the said provision to come into play.
The precedent cited by the writ petitioners/respondents no.1 to 4, unfortunately, itself militates against its contention. The case was in respect of a
claim governed by the Limitation Act, 1908, in which Section 23 corresponded to the present Section 22 of the Act of 1963. In the said case of
Balkrishna Savalram Pujari and Othersâ€"vsâ€"Shree Dnyaneshwar Maharaj Sansthan and Others reported in AIR 1959 SC 798, their Lordships held
as follows: -
“It is then contended by Mr. Rege that the suits cannot be held to be barred under art. 120 because s. 23 of the Limitation Act applies; and since,
in the words of the said section, the conduct of the trustees amounted to a continuing wrong, a fresh period of limitation began to run at every moment
of time during which the said wrong continued. Does the conduct of the trustees amount to a continuing wrong under s. 23 ? That is the question
which this contention raises for our decision. In other words, did the cause of action arise de die in diem as claimed by the appellants ? In dealing with
this argument it is necessary to bear in mind that s. 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing
wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said
injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may
continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In
this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said
injury. It is only in regard to acts which can be properly characterised as continuing wrongs that s. 23 can be invoked. Thus considered it is difficult to
hold that the trustees' act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession
from them by their suit in 1922 was a continuing wrong.
The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants' rights though the damage caused by the
said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the
continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment ? As soon as the decree was
passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession
continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a
cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the
right is complete at the date of the ouster and so there would be no scope for the application of s. 23 in such a case. That is the view which the High
Court has taken and we see no reason to differ from it.â€
From my analysis at paragraph 13 of this judgment, it ought to be apparent that the wrong committed by the default in making payment of the
equal yearly installment for each of the years was completed on the expiry of the financial year â€" the wrong completed for non-payment of the one
third of the arrears for April 1, 2008 to March 31, 2009 was completed on expiry of March 31, 2009 and so on for each respective installment, till
March 31, 2012. The injury caused by such default was not of a character which continued, since the current salary on fixation of pay with
retrospective effect was being disbursed. Therefore, it did not continue as a recurring wrong or recurring tort â€" no cause of action accrued to the
writ petitioners de die in diem. Therefore, this judgment instead of helping the writ petitioners/respondents no.1 to 4 hammers the last nail into the
coffin of limitation for them. Section 22 of the Act of 1963 is clearly not applicable to the case as made out by the writ petitioners/respondents no.1 to
4.
What then, is the law relating to delay in instituting a writ petition for enforcement of a legal right as opposed to a fundamental right? Would the
situation be different if the enforcement was that of a right guaranteed under Part III of the Constitution of India? Would there be any difference if
the enforcement of the fundamental right partook of the nature of a money claim?
Let me get the ground rules clear for this discussion. A writ petition before the High Court is a discretionary remedy â€" it is not a matter of right
under Article 226 of the Constitution of India. Even under Article 32 of the Constitution of India it is a right only for enforcement of a fundamental
right but in appropriate cases the Hon'ble Supreme Court may refuse it, as a matter of discretion. The principle of law relating to delay and laches as
factors disentitling a party to discretionary remedy was succinctly laid down by Sir Barnes Peacock in the decision reported in (1874) LR 5 PC 221
(Lindsay Petroleum Co. v. Hurd). The relevant passage reads as under: -
“11. … 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 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.â€
The above passage was quoted with approval by a Constitution Bench of the Supreme Court in the decision reported in AIR 1967 SC 1450 (Moon
Mills Ltd. v. Industrial Courts) and a subsequent Bench comprising three learned Judges in the decision reported in AIR 1969 SC 329 (Maharashtra
SRTC v. Balwant Regular Motor Service). Lately, the Hon'ble Supreme Court sitting in Division Benches of two learned Judges had the occasion to
quote the said passage in (2007) 9 SCC 274 (Shiv Dass v. Union of India as well as in the decisions reported in (2009) 3 SCC 281 [Yunus Baboobhai
A. Hamid Padvekar v. State of Maharashtra] and (2014) 4 SCC 108 (Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu).
In Murali Babu (supra), a writ petition filed after 4 (four) years of dismissal from service was entertained by the High Court. Relying on several
previous decisions and reversing the decision of the High Court, the Supreme Court held:
“15. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566, the Court observed that: (SCC p. 594, para 24) ‘24. … it is well settled that the
power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its
discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic.’
It has been further stated therein that: (Nandlal Jaiswal case, SCC p. 594, para 24)
‘24. … If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court
may decline to intervene and grant relief in the exercise of its writ jurisdiction.’
Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is
likely to cause confusion and public inconvenience and bring in injustice.
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
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 â€" 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.†(underlined for emphasis by
me).
While considering whether a belated writ petition (be it under Article 32 or under Article 226) for recovery of money ought to be entertained or
not, any discussion would be incomplete without reference to the decision reported in AIR 1970 SC 898 (M/s. Tilokchand Motichand and others v.
H.B. Munshi, Commissioner of Sales Tax, Bombay and others). The Constitution Bench comprising five judges expressed divergent opinions and by a
majority of 3:2, dismissed the writ petition presented under Article 32 of the Constitution seeking refund of money that had been exacted from the
petitioners as a tax in terms of a law which, subsequent to the payment, had been declared ultra vires by the Supreme Court on September 29, 1967
vide the decision reported in 21 STC 174 (Kantilal Babulal v. H.G. Patel, Sales Tax Officer). It is noticed that the process of recovery of tax had
earlier been under challenge before the Bombay High Court at the instance of the petitioners, albeit unsuccessfully, whereupon they were forced to
pay the tax. It would be worthwhile to notice the relevant views of each of the learned judges of the Bench in the sequence the same were prepared.
In the Constitution Bench judgment referred to in paragraph 24 above, the principal and majority judgment was written by Hon'ble G.K. Mitter, J,
(as His Lordship then was). The following passages from the opinion of His Lordship clear the view that was taken on the subject dispute: -
“51. The Limitation Acts do not in terms apply to claims against the State in respect of violation of fundamental rights. A person complaining of
infraction of any such rights has one of three courses open to him. He can either make an application under Article 226 of the Constitution to a High
Court or he can make an application to this Court under Article 32 of the Constitution, or he can file a suit asking for appropriate reliefs. The decisions
of various High Courts in India have firmly laid down that in the matter of the issue of a writ under Article 226 the courts have a discretion and may in
suitable cases refuse to give relief to the person approaching it even though on the merits the applicant has a substantial complaint as regards violation
of fundamental rights. Although the Limitation Act does not apply, the courts have refused to give relief in cases of long or unreasonable delay. As
noted above in Bhailal Bhai case it was observed that the ‘maximum period fixed by the Legislature as the time within which the relief by a suit in a
civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be
measured’. On the question of delay, we see no reason to hold that a different test ought to be applied when a party comes to this Court under
Article 32 from one applicable to applications under Article 226. There is a public policy behind all statutes of limitation and according to
Halsbury’s Laws of England (Third Edition Vol. 24), Article 330 at Page 181 ‘The Courts have expressed at least three different reasons
supporting the existence of statutes of limitation, namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant
might have lost the evidence to disprove a stale claim and (3) that persons with good causes of action should pursue them with reasonable
diligence.’
In my view, a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the Limitation Act
for the enforcement of the right by way of suit. While not holding that the Limitation Act applies in terms, I am of the view that ordinarily the period
fixed by the Limitation Act should be taken to be a true measure of the time within which a person can be allowed to raise a plea successfully under
Article 32 of the Constitution.***
A claim for money paid under coercion would be covered by Article 113 of the Limitation Act, 1963, giving a period of three years from the first
of January 1964 on which date the Act came into force. The period of limitation for a suit which was formerly covered by Article 120 of the Act of
1908 would in case like this be covered by Article 113 of the new Act and the suit in this case would have to be filed by the 1st January, 1967. As the
petition to this Court was presented in February 1968, a suit, if filed, would have been barred and in my view the petitioners’ claim in this case
cannot be entertained having been preferred after the 1st of January, 1967. The facts negative any claim of payment under a mistake of law and are
only consistent with a claim for money paid under coercion. As the petitioners have come to this Court long after the date when they could have
properly filed a suit, the application must be rejected.â€
Hon'ble R.S. Bachawat, J (as His Lordship then was) writing a separate opinion concurred with Hon'ble G.K. Mitter, J. According to His
Lordship: -
“31. Two points arise for decision in this writ petition: (1) Would the claim be barred by limitation if it were the subject-matter of a suit in February,
1968 and (2) if so, are the petitioners entitled to any relief in this petition under Article 32 of the Constitution.
Subject to questions of limitation, waiver and estoppel, money paid under mistake or coercion may be recovered under Section 72 of the Indian
Contract Act. The right to relief under Section 72 extends to money paid under mistake of law i.e. ‘mistake in thinking that the money paid was due
when, in fact, it was not due,’….
The next and the more fundamental question is whether in the circumstances the Court should give relief in a writ petition under Article 32 of the
Constitution. No period of limitation is prescribed for such a petition. The right to move this Court for enforcement of fundamental rights is guaranteed
by Article 32. The writ under Article 32 issues as a matter of course if a breach of a fundamental right is  established. Technical rules applicable to
suits like the provisions of Section 80 of the Code of Civil Procedure are not applicable to a proceeding under Article 32. But this does not mean that
in giving relief under Article 32 the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like.***
The normal remedy for recovery of money paid to the State under coercion or mistake of law is by suit. Articles 32 and 226 of the Constitution
provide concurrent remedy in respect of the same claim. The extraordinary remedies under the Constitution are not intended to enable the claimant to
recover monies, the recovery of which by suit is barred by limitation. Where the remedy in a writ application under Article 32 or Article 226
corresponds to a remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the Court in its writ jurisdiction acts by
analogy to the statute, adopts the statute as its own rule of procedure and in the absence of special circumstances imposes the same limitation on the
summary remedy in the writ jurisdiction.***
37-A. Similarly this Court acts on the analogy of the statutes of limitation in respect of a claim under Article 32 of the Constitution though such claim is
not the subject of any express statutory bar of limitation. If the right to a property is extinguished by prescription under Section 27 of the Limitation
Act, 1963, the petitioner has no subsisting right which can be enforced under Article 32, see Sobhraj Odharmal v. State of Rajasthan, (1963) Supp (1)
SCR 99 at p. 111=(AIR 1963 SC 640 at p. 645). In other cases where the remedy only and not the right is extinguished by limitation, it is on grounds
of the public policy that the court refuses to entertain stale claims under Article 32. The statutes of limitation are founded on sound principles of public
policy. ***
Hon’ble K.S. Hedge, J. (as His Lordship then was) was unable to concur with the opinions of Hon’ble G.K. Mitter and Hon’ble R.S.
Bachawat, JJ. that remedy under Article 32 of the Constitution was also discretionary, like Article 226. According to His Lordship, it was the duty of
the Supreme Court to enforce a fundamental right if it were satisfied of breach of a fundamental right by State action, and delay or laches in
approaching the Court could not be a relevant consideration. His Lordship had the occasion to observe as follows: -
“58. *** it follows that the impugned collection was without the authority of law and consequently the same is an exaction resulting in the
infringement of one of the proprietary rights of the petitioners guaranteed to them under Article 19(1)(f) of the Constitution. Hence the petitioners
have a fundamental right to approach this Court under Article 32 of our Constitution for appropriate relief and this Court has a duty to afford them
appropriate relief. In Kharak Singh v. State of U.P., 1964-1 SCR 332=(AIR 1963 SC 1295), Rajagopala Ayyangar, J., speaking for the majority
observed that once it is proved to the satisfaction of this Court that by State action the fundamental right of a petitioner has been infringed it is not only
the right but the duty of this Court under Article 32 to afford relief to him by passing appropriate orders in that behalf. The right given to the citizens to
move this Court under Article 32 is itself a fundamental right and the same cannot be circumscribed or curtailed except as provided by the
Constitution. It is inappropriate to equate the duty imposed on this Court to the powers of the Chancery Court in England or the equitable jurisdiction of
the American courts. A duty imposed by the Constitution cannot be compared with discretionary powers under Article 32. The mandate of the
Constitution is clear and unambiguous and that mandate has to be obeyed. It must be remembered, as emphasised by several decisions of this Court
that this Court is charged by the Constitution with the special responsibility of protecting and enforcing the fundamental rights under Part III of the
Constitution.***
All of us are unanimous on the question that the impugned collection amounts to an invasion of one of the fundamental rights guaranteed to the
petitioners. Our difference primarily centres round the question whether their right to get relief under Article 32 is subject to any limitation or to be
more accurate whether this court has any discretion while exercising its jurisdiction under that Article? As mentioned earlier a right to approach this
court under Article 32 is itself a fundamental right. In that respect our Constitution makes a welcome departure from many other similar constitutions.
As seen earlier a party aggrieved by the infringement of any of its fundamental rights has a right to get relief at the hands of this court, and this court
has a duty to grant appropriate relief - see AIR 1965 SC 1514. The power conferred on this Court by that Article is not a discretionary power. This
power is not similar to the power conferred on the High Courts under Article 226 of the Constitution. Hence laches on the part of an aggrieved party
cannot deprive him of the right to get relief from this court under Article 32. ….. Law reports do not show a single instance, where this Court had
refused to grant relief to a petitioner in a petition under Article 32 on the ground of delay.
Admittedly the provisions contained in the Limitation Act do not apply to proceedings under Article 226 or Article 32. The Constitution makers
wisely, if I may say with respect, excluded the application of those provisions to proceedings under Articles 226, 227 and 32 lest the efficacy of the
constitutional remedies should be left to the tender mercies of the legislatures. *** The fear that forgotten claims and discarded rights may be sought
to be enforced against the Government after lapse of years, if the fundamental rights are held to be enforceable without any time limit appears to be
an exaggerated one. It is for the party who complains the infringement of any right to establish his right. As years roll on his task is bound to become
more and more difficult. He can enforce only an existing right. A right may be lost due to an earlier decision of a competent court or due to various
other reasons. If a right is lost for one reason or the other there is no right to be enforced. In this case we are dealing with an existing right even if it
can be said that the petitioners’ remedy under the ordinary law is barred. If the decision of Bachawat and Mitter, JJ., is correct, startling results
are likely to follow. Let us take for example a case of a person who is convicted and sentenced to a long period of imprisonment on the basis of a
statute which had been repealed long before the alleged offence was committed. He comes to know the repeal of the statute long after the period
prescribed for filing appeal expires. Under such a circumstance according to the decision of Bachawat and Mitter, JJ., he will have no right â€" the
discretion of the Court apart â€" to move this Court for a writ of habeas corpus.
Our Constitution makers in their wisdom thought that no fetters should be placed on the right of an aggrieved party to seek relief from this Court
under Article 32. A comparison of the language of Article 226 with that of Article 32 will show that while under Article 226 a discretionary power is
conferred on the High Courts the mandate of the Constitution is absolute so far as the exercise of this Court’s power under Article 32 is
concerned. Should this Court an institution primarily created for the purpose of safeguarding the fundamental rights guaranteed under Part III of the
Constitution, narrow down those rights? The implications of this decision are bound to be far reaching. It is likely to pull down from the high pedestal
now occupied by the fundamental rights to the level of other civil rights. I am apprehensive that this decision may mark an important turning point in
downgrading the fundamental rights guaranteed under the Constitution. I am firmly of the view that a relief asked for under Article 32 cannot be
refused on the ground of laches. The provisions of the Limitation Act have no relevance either directly or indirectly to proceedings under Article 32.
Considerations which are relevant in proceedings under Article 226 are wholly out of place in a proceeding like the one before us.***â€
(underlined by me for emphasis)
Even though Hon'ble S.N. Sikri, J. (as His Lordship then was) held that the petitioner had explained the delay and was entitled to relief,
approaching the Supreme Court with an Article 32 petition with utmost expedition was reiterated in the following words: -
““17. *** Bearing in mind the history of these writs I cannot believe that the Constituent Assembly had the intention that five Judges of this
Court should sit together to enforce a fundamental right at the instance of a person, who had without any reasonable explanation slept over his rights
for 6 or 12 years. The history of these writs both in England and the U.S.A. convinces me that the underlying idea of the Constitution was to provide
an expeditious and authoritative remedy against the inroads of the State. If a claim is barred under the Limitation Act, unless there are exceptional
circumstances, prima facie it is a stale claim and should not be entertained by this Court. But even if it is not barred under the Indian Limitation Act, it
may not be entertained by this Court if on the facts of the case there is unreasonable delay. For instance, if the State had taken possession of property
under a law alleged to be void, and if a petitioner comes to this Court 11 years after the possession was taken by the State, I would dismiss the petition
on the ground of delay, unless there is some reasonable explanation. The fact that a suit for possession of land would still be in time would not be
relevant at all. It is difficult to lay down a precise period beyond which delay should be explained. I favour one year because this Court should not be
approached lightly, and competent legal advice should be taken and pros and cons carefully weighed before coming to this Court. It is common
knowledge that appeals and representations to the higher authorities take time; time spent in pursuing these remedies may not be excluded under the
Limitation Act, but it may ordinarily be taken as a good explanation for the delay.
It is said that if this was the practice the guarantee of Article 32 would be destroyed. But the article nowhere says that a petition, howsoever late,
should be entertained and a writ or order or direction granted, howsoever remote the date of infringement of the fundamental right. In practice this
Court has not been entertaining stale claims by persons who have slept over their rights. There is no need to depart from this practice and tie our
hands completely with the shackles imposed by the Indian Limitation Act. ***â€
(underlined by me for emphasis).
Hon’ble M. Hidayatullah, C.J. (as His Lordship then was) agreed with the views of Hon’ble R.S. Bachawat and Hon’ble G.K. Mitter,
JJ. and proceeded to dismiss the writ petition by observing that: -
“2. At the threshold it appears to me that as there is no law which prescribes a period of limitation for such petitions, each of my brethren has
really given expression to the practice he follows or intends to follow. I can do no more than state the views I hold on this subject and then give my
decision on the merits of the petition in the light of those views.
This Court does not take action in cases covered by the ordinary jurisdiction of the civil courts, that is to say, it does not convert civil and criminal
actions into proceedings for the obtainment of writs. Although there is no rule or provision of law to prohibit the exercise of its extraordinary
jurisdiction this Court has always insisted upon recourse to ordinary remedies or the exhaustion of other remedies. It is in rare cases, where the
ordinary process of law appears to be inefficacious, that this Court interferes even where other remedies are available. This attitude arises from the
acceptance of a salutary principle that extraordinary remedies should not take the place of ordinary remedies.
In India we have the Limitation Act which prescribes different periods of limitation for suits, petitions or applications. There are also residuary
articles which prescribe limitation in those cases where no express period is provided. If it were a matter of a suit or application, either an appropriate
article or the residuary article would have applied. But a petition under Article 32 is not a suit and it is also not a petition or an application to which the
Limitation Act applies. To put curbs in the way of enforcement of Fundamental Rights through legislative action might well be questioned under
Article 13(3). The reason is also quite clear. If a short period of limitation were prescribed the Fundamental Right might well be frustrated. Prescribing
too long a period might enable stale claims to be made to the detriment of other rights which might emerge.
If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such
claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any
period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6
months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I
will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the
merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction.
Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case
may be brought within Limitation Act by reason of some article but this Court need not necessarily give the total time to the litigant to move this Court
under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach
of the Fundamental Right and the remedy claimed are and how the delay arose.
Applying these principles to the present case what do I find? The petitioner moved the High Court for relief on the ground that the recovery from
him was unconstitutional. He set out a number of grounds but did not set out the ground on which ultimately in another case recovery was struck
down by this Court. That ground was that the provisions of the Act were unconstitutional. The question is: can the petitioner in this case take
advantage, after a lapse of a number of years, of the decision of this Court? He moved the High Court but did not come up in appeal to this Court. His
contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within
his knowledge and therefore he did not know of it and pursue it in this Court. To that I answer that law will presume that he knew the exact ground of
unconstitutionality. Everybody is presumed to know the law. It was his duty to have brought the matter before this Court for consideration. In any
event, having set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous
than he in his turn got the statute declared unconstitutional, and got a favourable decision. If I were to hold otherwise, then the decision of the High
Court in any case once adjudicated upon and acquiesced in, may be questioned in a fresh litigation revived only with the argument that the correct
position was not known to the petitioner at the time when he abandoned his own litigation. I agree with the opinion of my brethren Bachawat and
Mitter, JJ., that there is no question here of a mistake of law entitling the petitioner to invoke analogy of the article in the Limitation Act. The grounds
on which he moved the Court might well have impressed this Court which might have also have decided the question of the unconstitutionality of the
Act as was done in the subsequent litigation by another party. The present petitioner should have taken the right ground in the High Court and taken it
in appeal to this Court after the High Court decided against it. Not having done so and having abandoned his own litigation years ago, I do not think
that this Court should apply the analogy of the article in the Limitation Act and give him the relief now. The petition, therefore, fails and is dismissed
with costs.â€
(underlined by me for emphasis)
Close on the heels of the decision in Tilokchand Motichand (supra), it was urged before another Constitution Bench of the Supreme Court that the
said decision needs review. Speaking for the Bench in the decision reported in (1970) 1 SCC 84 (Rabindra Nath Bose v. Union of India), arising out of
an Article 32 writ petition, Hon’ble S.N. Sikri, J. overruled the contention and held as follows:
“32. The learned counsel for the petitioners strongly urges that the decision of this Court in Tilokchand Motichand case needs review. But after
carefully considering the matter, we are of the view that no relief should be given to petitioners who, without any reasonable explanation, approach this
Court under Article 32 of the Constitution after inordinate delay. The highest Court in this land has been given original jurisdiction to entertain petitions
under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said
that Article 32 is itself a guaranteed right. So it is, but it does not follow from this 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.â€
The view expressed in Tilokchand Motichand (supra) still holds good, not having been overruled by a larger Constitution Bench decision of the
Supreme Court.
That belated writ petitions under Article 32 ought not to be entertained was reiterated by the Supreme Court subsequently in its decisions reported
in AIR 1975 SC 1269 (Malcolm Lawrence Cecil v. Union of India), AIR 1981 SC 1495 (S.S. Moghe v. Union of India) and AIR 1982 SC 101 (R.S.
Makashi v. I.M. Menon).
By now, it is well-settled that there exists no inviolable rule restricting the authority or competence of a Court of Writ to entertain stale claims;
whether or not a writ petition deserves entertainment despite delay and laches, however, ought to be decided on the facts of each case. If no
explanation is furnished for the belated approach, the writ petition could be summarily dismissed. If the petitioner furnishes an explanation, the merit
thereof has to be examined. If the explanation is unworthy of acceptance, dismissal of the writ petition would be the obvious outcome. However, if the
petitioner satisfies the Court that there were sufficient reasons that prevented him from approaching it earlier, entertainment of the writ petition would
not be automatic; in such a case, the Court is duty bound to assess the prejudice that the opponent is likely to suffer for entertainment of such belated
writ petition and/or acts done in the interregnum that could affect the balance of justice either way. If prejudice is patent, or injustice bound to occur if
the Court were to entertain the writ petition, the Court may still dismiss it despite being satisfied that the delay has been adequately explained or that
there was no laches on the part of the petitioner. If prejudice is not so patent or intervening acts that could affect the balance of justice are not so
obtrusive, a writ petition could be admitted but if the opponent in his/its counter pleads and proves prejudice or the likely injustice that he/it would be
subjected to if the Court were to grant relief to the petitioner, the Court would still be justified in declining relief notwithstanding admission of the writ
petition. The point of delay and laches is not one in the nature of a demurrer that unless raised at the first instance, it cannot be raised at a subsequent
stage of the proceedings. Therefore, the pleadings are of tremendous importance, whether explaining the delay or countering the explanation. The
questions raised in paragraph 21 of this judgment are answered accordingly.
On both the pillars of the ordinary period of reasonable period of delay having been thus knocked away, the edifice being the writ petition could
only stand if there was any cogent explanation for this period of delay which was beyond the period of three years from when the period of limitation
for filing a suit expired on March 31, 2015. There is, unfortunately, none. The writ petition ought therefore to have failed, for this ground alone, for no
mandamus can issue for the enforcement of a mere legal right whose remedy at civil law stood extinguished by expiry of the period of limitation since
there was no enforceable right at law. If the writ petitioners had contended that their fundamental right to livelihood was violated by the non-payment
of the arrears pursuant to the revision of pay, and that there could be no limitation against its enforcement, even beyond the ordinary period of
limitation for a suit, they would have been required to give cogent explanation for the delay. They have not explained it. I would have dismissed the
writ petition straightway on setting aside the order of the learned single judge had it not been for the fact that the second limb of the writ
petitioners’ submissions is that they are entitled to enforcement of the directive dated August 31, 2012, by compelling the State of West Bengal to
take appropriate penal action against the school authorities and the writ petition was well within the period of three years from the date of August 31,
2012, having been affirmed in July 2015. Therefore, though the first ground of appeal as in paragraph 12 of this judgment is answered in favour of the
appellants, I have to examine whether the writ petitioners had any cause of action which was not barred by unreasonable delay for enforcement of the
order dated August 31, 2012, which was sought to be enforced by the Learned Single Judge, or whether it already stood enforced as contended by the
appellants in paragraph 9 of this judgment.
It is here that the second question referred to in paragraph 8 and the locus of the appellants to maintain the appeal as raised by Mr. Jha, come
together like rivers of blood, entwined. Mr. Jha’s contention is clear cut. The directive dated August 12, 2012 was clearly a mandate on the school
authorities particularly the principal to pay the arrears in terms of Rule 12 of ROPA Rules, 2009, particularly after considering the appellant no.
4’s reply dated January 31, 2012. The respondent no. 7 had therefore rejected the representation and threatened the appellant school with penal
action if the school authorities did not obey the provisions of Chapter IV of the AIS Code, 1993. The appellant school had not obeyed it. Still no penal
action had been taken by the respondent no. 7. Mr. Jha strenuously contended that even if his clients were not paid their arrears in terms of prayers
(a) and (b) â€" the money claim â€" still prayer (c) as extracted in paragraph 2 above survived, and appropriate penal action had to be taken by the
respondent no.7 in terms of Regulation 13 of the AIS Code, 1993. Since the school had drawn dearness allowance till January, 2013, but had not paid
the arrears of pay in terms of ROPA, 2009 to the writ petitioners/respondents no.1 to 4 even till that date, hence the penalty of withdrawal of
recognition of the school was still very much on the cards. The prayer for this was not unreasonably delayed, and had been made within 3 years from
the date that the directive dated August 31, 2012 had been issued. Since the appellants had not challenged this directive dated August 31, 2012 they
were bound to follow it and non-enforcement of this directive by the respondent no. 7 is a continuing wrong, and the writ petitioners/respondents no.1
to 4 did have a cause of action de die in diem and the order appealed against was perfectly lawful in directing its enforcement.
The appellants have a simple answer to the second question. They have allowed the directive dated August 31, 2012 to take effect including giving
up the Dearness Allowance which they used to get from the Government of West Bengal, which was the proposed penal action under the said
directive. So, the directive dated August 31, 2012 has already taken effect. Nothing more requires to be done. It is not in dispute that the pay and
allowances of the teachers of the appellant no.2 were revised in tune with ROPA, 2009 in 2009 itself, and this was being paid from after April 2009.
The problem was the arrears in terms of Rule 12 aforesaid. The case of the appellants is that the school does not have funds to pay the said arrears in
terms of Rule 12 aforesaid and they have represented the same to the authorities. While they accept that it was their duty to pay such arrears as a
DA getting school, it is their further case that the respondent no. 7 already indicated the penalty which they would incur if they did not obey the
provisions of Chapter IV of the AIS Code, being Regulation 20, relating to payment of arrears; the respondent no.7 did not indicate that any action
would be taken under Regulation 13, but that the appellant no.2 could not both continue as a DA getting school and not pay the arrears in terms of
ROPA, 2009. The respondent no. 7 already indicated the penalty of forfeiting the DA-getting status, which the school authorities accepted. This was
the withdrawal of the benefit of DA.
I have emphasized that the directive dated August 31, 2012 issued by the respondent no.7 indicated that “to remain a DA getting school the
school authority needs to obey the abovementioned Codeâ€. The school accepted such penalty and ceased to raise bills for dearness allowance and
did not draw it after January, 2013 from the State of West Bengal and was paying current dearness allowance out of the funds of the school itself.
Therefore, so far as the second question is concerned, as in paragraph 8 of this judgment on the basis of which both the locus of the appellants and
the further enforceability of the directive dated August 31, 2012 were disputed, the answer is simple â€" the appellants were not required to challenge
the directive dated August 31, 2012 since they accepted the punishment proposed for their disobedience and stopped being a DA-getting school. The
directive stood enforced from January 2013, when for non-payment of the arrears of dearness allowance in terms of Regulation 20 of the AIS Code,
1993, the appellant no.2 ceased to draw dearness allowance from the State of West Bengal as the respondent no.7 had indicated would be the penal
consequence of non-payment of the arrears. No person can be punished twice for the same fault even if there were two punishments possible â€" one
harsh and the other less so, and the lesser had been threatened and imposed. It was for the writ petitioners/respondents no.1 to 4 to have indicated to
the respondent no. 7 that the punishment he had proposed was too lenient and for them to have challenged the directive dated August 31, 2012 on the
ground that it was not harsh enough. Instead, the writ petitioners/ respondents no. 1 to 4 relied upon and claimed on the said directive, without
considering or even disclosing in the writ petition that the said directive so far as the penalty indicated in it was concerned, had already been given
effect to in January 2013. No explanation has been given by the writ petitioners for accepting the said directive as it stood. They continue to rely upon
it, not merely before the learned single judge, but also before this Court. Since I have held that the directive stood enforced on and from January 2013,
there is nothing left to enforce, and no cause of action for the writ petitioners to agitate on that count.
In such view of the matter, the order under appeal directing further enforcement of the said directive dated August 31, 2012 cannot be sustained
since it would amount to punishing a person twice for the same fault after having indicated what the penalty would be and imposing it, and then
seeking to impose a harsher penalty without the original penalty being appealed against.
The appeal thus succeeds on the above ground mentioned at paragraph 12 of this judgment â€" of unreasonable and unexplained delay â€" and the
appellants also succeed on the question of their locus as in paragraph 8, as decided above. Thus, this court is not required to go into the question of
whether the payment of arrears could be enforced against an educational institution established and administered by a religious minority in terms of a
secular law or to bring parity with benefits available under a secular law which would jeopardize the very existence of the minority religious
educational institution as argued by Mr. Majumder and Mr. Baid for the appellants.
Consequentially, the impugned judgment and order dated December 7, 2016 is set aside after recording that the directive dated August 31, 2012
has already been given effect to so far as the consequence of its disobedience is concerned, by the school having forfeited its status as a DA-getting
school. This judgment shall not affect any pending proceedings relating to any other relief regarding the disciplinary proceedings against the writ
petitioners/respondents no.1 to 4 arising out of any dispute relating, among other things, to such claim for arrears. There shall be no order as to costs.