R. Arunachalam vs The Govt. of Tamil Nadu N. Gunasekaran and N. Kailasam Vs The Govt. of Tamil Nadu and Others

K. Chandru, J.—Heard the arguments of Mr. P.V. Balasubramanian, learned Counsel appearing for the petitioner in W.P. No. 7901 of

2000, Mr. Sivam Sivanandaraj, learned Counsel appearing for the petitioners in W.P. Nos. 23086 and 23087 of 2006 and Mr. M. Dhandapani,

learned Special Government Pleader representing the respondents in all these petitions and have perused the records.

The petitioner in W.P. No. 7901 of 2000 was appointed as a Telephone Operator and his post was eligible to be converted into that of a Junior

Assistant. He got the training for the post of Junior Assistant as early as on 23.3.1987. However, without permitting him to become a Junior

Assistant, his services was continued as a Telephone Operator. It was only on 06.02.1993, he was made as a Junior Assistant and on 21.9.1996,

he was promoted as an Assistant. Thereafter, he went on deputation to the Tamil Nadu Civil Supplies Corporation for a period of one year and

five months. When he got repatriated, he was posted as a Revenue Inspector. In the meanwhile, certain employees who were appointed during the

period 1981-84 got their services regularised w.e.f. 25.6.1984 and they were also made permanent w.e.f. 02.9.1984. Those employees went to

the Tribunal in O.A. No. 5533 of 1996 seeking for drawal of seniority list and that O.A. was allowed on 30.6.1998. Pursuant to the order in the

O.A., a seniority list was issued by the fourth respondent by proceedings dated 14.11.1998. At that time, the petitioner did not object to the

revised seniority list. Based upon the said seniority list, he was reverted to the post of Assistant on 02.6.1999. His contention was that in the

seniority list published in the year 1989 though his name was shown in Serial No. 274, in the revised seniority list, his name was shown as Serial

No. 503.

The petitioner neither filed any Review Application before the Tribunal against the order dated 30.6.1998 in O.A. No. 5533 of 1996 nor

challenged the seniority list dated 14.11.1998 issued by the fourth respondent. But, however, after a period of two years, filed the present writ

petition challenging the order of the Tribunal as well as the consequential revised seniority list of the fourth respondent directly by way of writ

proceedings. This was on the plea that such issue of seniority was previously concluded by earlier proceedings and binding guidelines were given

by this Court and upheld by the Supreme Court.

This Court admitted the said writ petition and also granted status quo order on 28.4.2000.

Similarly, N. Gunasekaran, (petitioner in W.P. No. 23086 of 2006) and N. Kailasam, (Petitioner in W.P. No. 23087 of 2006) who were also

working as Telephone Operators and after conversion, became Junior Assistants and subsequently, got promoted to the post of Assistants in the

year 1993. They were reverted to the post of Junior Assistants in the year 1998 pursuant to the order passed by the Tribunal in O.A. No. 5533 of

1996 dated 30.6.1998 and also the revised seniority list published by the fourth respondent dated 14.11.1998. It was only when a further order

was made by P.A. General to Collector dated 31.12.2001, the petitioner in W.P. No. 23086 of 2006 became aggrieved. Likewise, when the

Commissioner for Revenue Administration, by his order dated 31.7.2000, confirmed the earlier list, the petitioner in W.P. No. 23087 of 1996

became aggrieved. But even thereafter, they did not move the Tribunal and after a period of 5-1/2 years, they have filed the present writ petitions.

Such an inordinate delay can never be condoned and the petitioners, at the time of admission of the two writ petitions, submitted that since the

earlier writ petition W.P. No. 7901 of 2000 was still pending, they can also have the benefit of a hearing in their Writ Petitions. This Court directed

them to pay Rs. 10,000/- to the Chief Justice Fund as penalty for the inordinate delay in filing the two writ petitions. We do not think that such

payment can condone the inordinate delay in filing the writ petitions.

Learned Counsel for the petitioners relied on the following two judgments of the Supreme Court in support of his submission:

(a) Keshav Deo and Another Vs. State of U.P. and Others, and

(b) Sarat Chandra Mishra and Others Vs. State of Orissa and Others,

Whatever may be the merits of the contentions raised by the petitioners, this Court is not inclined to deal with the merits of the case and the writ

petitions are also liable to be rejected not only on the ground of delay and laches but also for lack of jurisdiction. The petitioners ought to have

moved the Tribunal u/s 19 of the Administrative Tribunal''s Act, 1985 against the order passed by the fourth respondent dated 14.11.1998 and in

case, if it was issued consequent to the order in O.A. No. 5533 of 1996 dated 30.6.1998, they should have also filed a third party review and

cannot come to this Court directly with the original cause of action.

The Supreme Court in L. Chandra Kumar Vs. Union of India and others, has held that as a matter of course, the parties must move the Tribunal

before approaching the High Court under Article 226 of the Constitution. Though an exception has been carved out by the Supreme Court in T.K.

Rangarajan Vs. Government of Tamil Nadu and Others, , the same is not available to the petitioners. The Supreme Court dealt with a case which

arose out of an extra-ordinary situation where 2,00,000 Government employees were sacked by the State Government in one single day.

Further, the petitioners have not moved either the Tribunal or this Court on time and hence, on the ground of delay and laches, their writ

petitions are liable to be rejected. A Constitution Bench of the Supreme Court, while dealing with delay in approaching the Court in respect of

service matters, vide its decision reported in S.S. Rathore Vs. State of Madhya Pradesh, held that parties who are having grievance over service

matters must approach the Court at the earliest point of time and held in paragraph 22 that submission of just a memorial or representation to the

Head of the establishment shall not be taken into consideration in the matter of fixing limitation.

Further, in the judgment relating to Bhoop Singh Vs. Union of India and others, , the Supreme Court held that inordinate and unexplained delay

itself can be a ground to refuse the relief.

The Supreme Court vide its decision in Roshan Lal and Others Vs. International Airport Authority of India and Others, rejected a request to

reopen the question of alleged illegality in an appointment on the ground of delay. The following passage found in paragraph 4 makes the position

clear:

The respondents were appointed as Airport Officers in 1975 and the present Writ Petitions were filed in 1978. We do not think we will be

justified in reopening the question of legality of the appointment of respondents as Airport Officers several years after their appointment....

In the decision of the Supreme Court in Karnataka Power Corporation Limited through its Chairman and Managing Director and Another Vs.

K. Thangappan and Another, , speaking for the Bench, Arijit Pasayat, J. in paragraphs 6 to 11 observed as follows:

Para 6: Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under

Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or

omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to

the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v.

Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably.

Para 7: What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd was approved by this Court

in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Shri Balwant Regular Motor Service. Sir Barnes had stated:

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 limitation, the

validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of

the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the

one course or the other, so far as it relates to the remedy.

Para 8: It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the

Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath

Bose v. Union of India that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32

after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the

Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

Para 9: It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the

indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained,

the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of

factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public

inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting

not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay

coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or

not to exercise such jurisdiction.

Para 10: It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay.

This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. This was reiterated in Rabindranath Bose case by stating that there is a limit

to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making

of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated

representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State

of Orissa v. Arun Kumar Patnaik also.)

The Supreme Court, further, in the judgment relating to the State of Tamil Nadu v. Seshachalam 2007 AIR SCW 7750 held that law leans in

favour of those who are alert and vigilant. Speaking for the bench, S.B. Sinha, J. in paragraph 11 observed as follows:

Para 11: Some of the respondents might have filed representations but filing of representations alone would not save the period of limitation. Delay

or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration.

Delay and/or laches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the

Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and

vigilant.

In the light of above, all the writ petitions are dismissed. However, there will be no order as to costs. Connected Miscellaneous Petitions are

closed.