Madhya Pradesh High Court
Nausad Khan vs The State Of Madhya Pradesh on 23 August, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 23rd OF AUGUST, 2024
WRIT APPEAL No. 2280 of 2023
NAUSAD KHAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Rahul Mishra - Advocate for the appellant.
Shri Yogesh Dhande - Government Advocate for the respondent/State.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
Heard on the question of admission.
This writ appeal under Section 2(1) of the Madhya Pradesh Uchcha
Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 has been filed
assailing the order dated 23.08.2023 (Annexure A-1) passed in Writ Petition
No.6624/2020.
2. The brief facts of the case are that the respondent No.2 issued advertisement for
Samvida Shala Shikshak Grade-III and merit list was prepared having name of
those candidates who have qualified the examination, i.e., M.P. Samvida Shala
Shikshak Grade-III qualifying examination. Appellant being an
OBC category candidate, secured 117.31 marks whereas private respondents
who have been given appointment either to OBC category or General category
have secured marks as follows – Dinesh Yadav – 113.18 marks, Bhav Singh
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Chouhan -109.14 marks, Ramswaroop Verma- 111.19 marks, Gajanand
Choudhary – 106.93 marks, Mukesh Vishwakarma – 110.97 marks, Arjun Singh –
109.02 marks, Hari Narayan Verma-111.31 marks, Satish Kumar Verma- 110.97
marks, Suresh Itwadia – 106.98 marks, Arvind Rathore – 107.10 marks,
Om Prakash Sharma-111.04 marks, Damodar Yadav – 103.02 marks, Rajendra
Lokhande -104.97 marks, Gayalal Kushwaha-111.26 marks, Dubey Sushil-107
marks, Peetambar Sharma-111.19 marks, Purshottam Sharma-111.14 marks,
Ramveer Sharma- 96.64 marks. However, appellant has not been
given appointment to the said post even after getting higher marks than that of
above mentioned candidates. Therefore, appellant submitted his application
before the respondent No. 5 herein to get an appointment on the basis of his
secured marks, i.e., 117.31 and made several representations/complaints before
them but the authority did not take any action thereupon. Thereafter, appellant
filed an application under RTI Act before respondent No.5 for obtaining the
information regarding marks as well as caste certificates of the selected candidate.
When the respondent No. 5 did not provide the information as sought by the
appellant, appellant filed an first appeal before the appellate authority under RTI
Act, i.e., respondent No.3 and second appeal before the SIT Bhopal. The appellant
also filed another application under RTI Act before respondent No.5 seeking
remaining information which were sought by the appellant in previous RTI
application, but the authority did not turn up to supply the information. The
appellant again filed first appeal and subsequent second appeal before the
authority concerned. The EIO Janpad Panchayat Khalwa wrote a letter to Branch
Head of Education Department to ensure the supply of information under RTI.
The appellate authority also wrote a letter and given show cause notice to erring
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officer. The authority provided some information to the appellant on 12.07.2019.
The appellant wrote a letter to Lokayukt pointing out the illegality done by the
respondents No.3 and 5. The appellant obtained the marks and caste certificate of
the selected candidates who have secured less marks than the appellant. By way
of filing of writ petition bearing W.P. No.6624/2020, the appellant challenged the
selection list by which respondents No.7 to 26 have been selected to the post of
Samvida Shala Shikshak Grade-III inspite of getting less marks than the appellant.
The learned Single Judge dismissed the writ petition on the ground of delay and
laches. Being aggrieved by the same, the appellant has filed this writ appeal.
3. Learned counsel for the petitioner submitted that after collecting the
information under the RTI Act, the appellant filed the writ petition. The
concerning authority took enough time to supply the information to the appellant.
The learned Single Judge did not consider the fact that the appellant was roaming
around concerning authority seeking redressal of his grievance and to collect the
information under RTI Act. However, the writ petition was dismissed by the
learned Single Judge on the ground of delay and laches.
4. Without entering into the merits of the case, this Court would like to deal with
the preliminary issue with regard to delay and latches. The crux of the matter is
that appellant had approached this Court after a huge delay of 14 years. It is well
established principle of law that delay defeats equity. This Court is supported in
its view by catena of judgments of Supreme Court which are as follows:
(i) The Supreme Court in the case of Karnataka Power Corpon. Ltd. Vs. K.
Thangappan reported in (2006) 4 SCC 322 has held as under :
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 CourtSignature Not Verified
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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.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay
Petroleum Co. v. Prosper Armstrong Hurd (PC at p. 239) 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.”
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.
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
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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.
(II) The Supreme Court in the case of M.P. Ram Mohan Raja Vs. State of T.N.
reported in (2007) 9 SCC 78 has held as under :
“11. So far as the question of delay is concerned, no hard-and- fast rule
can be laid down and it will depend on the facts of each case. In the
present case, the facts stare at the face of it that on 8-10-1996 an order
was passed by the Collector in pursuance of the order passed by the
High Court, rejecting the application of the writ petitioner for
consideration of the grant of mining lease. The writ petitioner sat tight
over the matter and did not challenge the same up to 2003. This on the
face of it appears to be very serious. A person who can sit tight for
such a long time for no justifiable reason, cannot be given any
benefit.”
(III) The Supreme Court in the case of Shiv Dass Vs. Union of India
reported in (2007) 9 SCC 274 has held as under :
“6. Normally, in the case of belated approach writ petition has to be
dismissed. Delay or laches is one of the factors to be borne in mind by
the High Courts when they exercise their discretionary powers under
Article 226 of the Constitution of India. 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.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay
Petroleum Co. v. Prosper Armstrong Hurd, PC at p. 239 was approved
by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra
SRTC v. Balwant Regular Motor Service. Sir Barnes had stated:
“Now the doctrine of laches in courts of equity is not an arbitrary or
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,Signature Not Verified
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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, if 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 relates to the remedy.
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.
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.”
(IV) The Supreme Court in the case of Nadia Distt. Primary School Council Vs.
Sristidhar Biswar reported in (2007) 12 SCC 779 has held as under :
“11. In the present case, the panel was prepared in 1980 and the
petitioners approached the court in 1989 after the decision in Dibakar
Pal. Such persons should not be given any benefit by the court when
they allowed more than nine years to elapse. Delay is very significant
in matters of granting relief and courts cannot come to the rescue of the
persons who are not vigilant of their rights. Therefore, the view takenSignature Not Verified
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by the High Court condoning the delay of nine years cannot be
countenanced.”
(V) The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant Singh reported
in (2006) 11 SCC 464 has held as under :
“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. 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.”
(VI) The Supreme Court in the case of Jagdish Lal Vs. State of Haryana reported
in (1997) 6 SCC 538 has held as under :
“18. That apart, as this Court has repeatedly held, the delay disentitles
the party to the discretionary relief under Article 226or Article 32 of
the Constitution.”
(VII) The Supreme Court in the case of NDMC Vs. Pan Singh reported in (2007)
9 SCC 278 has held as under :
16. There is another aspect of the matter which cannot be lost sight of.
The respondents herein filed a writ petition after 17 years. They did
not agitate their grievances for a long time. They, as noticed herein,
did not claim parity with the 17 workmen at the earliest possible
opportunity. They did not implead themselves as parties even in the
reference made by the State before the Industrial Tribunal. It is not
their case that after 1982, those employees who were employed or who
were recruited after the cut-off date have been granted the said scale of
pay. After such a long time, therefore, the writ petitions could not have
been entertained even if they are similarly situated. It is trite that the
discretionary jurisdiction may not be exercised in favour of those who
approach the court after a long time. Delay and laches are relevant
factors for exercise of equitable jurisdiction. (See Govt. of W.B. v.
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Tarun K. Roy, U.P. Jal Nigam v. Jaswant Singh and Karnataka Power
Corpn. Ltd. v. K. Thangappan.)
17. Although, there is no period of limitation provided for filing a writ
petition under Article 226 of the Constitution of India, ordinarily, writ
petition should be filed within a reasonable time. (See Lipton India
Ltd. v. Union of India and M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court held: (SCC p. 277,paras
9-10)
“9. 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. There is a limit to the time which can be considered
reasonable for making overnment 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 also State of Orissa v. Arun Kumar Patnaik.).
10. In the case of pension the cause of action actually continues from
month to month. That, however, cannot be a ground to overlook delay
in filing the petition. It would depend upon the fact of each case. If
petition is filed beyond a reasonable period say three years normally
the Court would reject the same or restrict the relief which could be
granted to a reasonable period of about three years. The High Court
did not examine whether on merit the appellant had a case. If on merits
it would have found that there was no scope for interference, it would
have dismissed the writ petition on that score alone.”
19. We, therefore, are of the opinion that it was not a fit case where the
High Court should have exercised its discretionary jurisdiction in
favour of the respondents herein.”
(VIII) The Supreme Court in the case of State of Orissa v. Pyarimohan
Amantaray reported in (1977) 3 SCC 396 has held as under :
6. It would thus appear that there is justification for the argument of
the Solicitor-General that even though a cause of action arose to the
petitioner as far back as 1962, on the rejection of his representation on
November 9, 1962, he allowed some eleven years to go by before
filing the writ petition. There is no satisfactory explanation of the
inordinate delay for, as has been held by this Court in Rabindra Nath
Bose v. Union of India the making of repeated representations, after
the rejection of one representation, could not be held to be a
satisfactory explanation of the delay. The fact therefore remains that
the petitioner allowed some years to go by before making a petition for
the redress of his grievances. In the meantime a number of other
appointments were also made to the Indian Administrative Service by
promotion from the State Civil Service, some of the officers received
promotions to higher posts in that service and may even have retired.
Those who continued to serve could justifiably think that as there was
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no challenge to their appointments within the period prescribed for a
suit, they could look forward to further promotion and higher terminal
benefits on retirement. The High Court therefore erred in rejecting the
argument that the writ petition should be dismissed because of the
inordinate and unexplained delay even though it was “strenuously”
urged for its consideration on behalf of the Government of India.
(IX) The Supreme Court in the case of State of Orissa v. Arun Kumar Patnaik
reported in (1976) 3 SCC 579 has held as under :
14. It is unnecessary to deal at length with the State’s contention that
the writ petitions were filed in the High Court after a long delay and
that the writ petitioners are guilty of laches. We have no doubt that
Patnaik and Mishra brought to the court a grievance too stale to merit
redress. Krishna Moorthy’s appointment was gazetted on March 14,
1962 and it is incredible that his service-horoscope was not known to
his possible competitors. On November 15, 1968 they were all
confirmed as Assistant Engineers by a common gazette notification
and that notification showed Krishna Moorthy’s confirmation as of
February 27, 1961 and that of the other two as of May 2, 1962. And
yet till May 29, 1973 when the writ petitions were filed, the petitioners
did nothing except to file a representation to the Government on June
19, 1970 and a memorial to the Governor on April 16, 1973. The High
Court made light of this long and inexplicable delay with a casual
remark that the contention was “without any force”. It overlooked that
in June, 1974 it was setting aside an appointment dated March, 1962
of a person who had in the meanwhile risen to the rank of a
Superintending Engineer. Those 12 long years were as if writ in water.
We cannot but express our grave concern that an extraordinary
jurisdiction should have been exercised in such an abject disregard of
consequences and in favour of persons who were unmindful of their
so-called rights for many long years.”
(X) The Supreme Court in the case of BSNL v. Ghanshyam Dass reported in
(2011) 4 SCC 374 has held as under :
“26. On the other hand, where only the affected parties approach the
court and relief is given to those parties, the fence-sitters who did not
approach the court cannot claim that such relief should have been
extended to them thereby upsetting or interfering with the rights which
had accrued to others.
27. In Jagdish Lal v. State of Haryana, the appellants who were general
candidates belatedly challenged the promotion of Scheduled Caste and
Scheduled Tribe candidates on the basis of the decisions in Ajit Singh
Januja v. State of Punjab, Union of India v. Virpal Singh Chauhan and
R.K. Sabharwal v. State of Punjab and this Court refused to grant the
relief saying: (Jagdish Lal case, SCC pp. 562-63, para 18) “18. … thisSignature Not Verified
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Court has repeatedly held, the delay disentitles the party to the
discretionary relief under Article 226 or Article 32 of the Constitution.
It is not necessary to reiterate all the catena of precedents in this
behalf. Suffice it to state that the appellants kept sleeping over their
rights for long and elected to wake up when they had the impetus from
Virpal Chauhan and Ajit Singh ratios. But Virpal Chauhan and
Sabharwal cases, kept at rest the promotion already made by that date,
and declared them as valid; they were limited to the question of future
promotions given by applying the rule of reservation to all the persons
prior to the date of judgment in Sabharwal case which required to be
examined in the light of the law laid in Sabharwal case. Thus earlier
promotions cannot be reopened. Only those cases arising after that date
would be examined in the light of the law laid down in Sabharwal case
and Virpal Chauhan case and equally Ajit Singh case. If the candidate
has already been further promoted to the higher echelons of service,
his seniority is not open to be reviewed. In A.B.S. Karamchari Sangh
case a Bench of two Judges to which two of us, K. Ramaswamy and
G.B. Pattanaik, JJ. were members, had reiterated the above view and it
was also held that all the prior promotions are not open to judicial
review. In Chander Pal v. State of Haryana a Bench of two Judges
consisting of S.C. Agrawal and G.T. Nanavati, JJ. considered the
effect of Virpal Chauhan, Ajit Singh, Sabharwal and A.B.S.
Karamchari Sangh cases and held that the seniority of those
respondents who had already retired or had been promoted to higher
posts could not be disturbed. The seniority of the petitioner therein and
the respondents who were holding the post in the same level or in the
same cadre would be adjusted keeping in view the ratio in Virpal
Chauhan and Ajit Singh; but promotion, if any, had been given to any
of them during the pendency of this writ petition was directed not to be
disturbed.”
The Supreme Court in the case of Ghulam Rasool Lone v. State of
J&K reported in (2009) 15 SCC 321 has held as under:
22. If at this late juncture the petitioner is directed to be promoted to
the post of Sub-Inspector even above Abdul Rashid Rather, the
seniority of those who had been promoted in the meantime or have
been directly recruited would be affected. The State would also have to
pay the back wages to him which would be a drainage of public funds.
Whereas an employee cannot be denied his promotion in terms of the
rules, the same cannot be granted out of the way as a result whereof the
rights of third parties are affected. The aspect of public interest as also
the general administration must, therefore, be kept in mind while
granting equitable relief.
23. We understand that there would be a heart burning insofar as the
petitioner is concerned, but then he is to thank himself therefor. If
those five persons, who were seniors to Hamiddulah Dar filed writ
petitions immediately, the High Court might have directed
cancellation of his illegal promotion. This Court in Maharaj Krishan
Bhatt did not take into consideration all these aspects of the matter and
the binding decision of a three-Judge Bench of this Court in Govt. of
W.B. v. Tarun K. Roy. The Division Bench of the High Court,
therefore, in our opinion was right in opining that it was not necessary
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for it to follow Maharaj Krishan Bhatt.”
(XI) The Supreme Court in the case of P.S. Sadasivaswamy v. State of T.N.,
reported in (1975) 1 SCC 152 has held as under :
“2. … A person aggrieved by an order of promoting a junior over his
head should approach the Court at least within six months or at the
most a year of such promotion. It is not that there is any period of
limitation for the courts to exercise their powers under Article 226 nor
is it that there can never be a case where the courts cannot interfere in a
matter after the passage of a certain length of time. But it would be a
sound and wise exercise of discretion for the courts to refuse to
exercise their extraordinary powers under Article 226 in the case of
persons who do not approach it expeditiously for relief and who stand
by and allow things to happen and then approach the Court to put
forward stale claims and try to unsettle settled matters.”
(XII) The Supreme Court in the case of Administrator of Union Territory of
Daman and Diu and others v. R.D. Valand reported in 1995 Supp (4) 593 has
held as under:-
“4. We are of the view that the Tribunal was not justified in interfering
with the stale claim of the respondent. He was promoted to the post of
Junior Engineer in the year 1979 with effect from 28-9-1972. A cause
of action, if any, had arisen to him at that time. He slept over the
matter till 1985 when he made representation to the Administration.
The said representation was rejected on 8-10-1986. Thereafter for four
years the respondent did not approach any court and finally he filed the
present application before the Tribunal in March, 1990. In the facts
and circumstances of this case, the Tribunal was not justified in
putting the clock back by more than 15 years. The Tribunal fell into
patent error in brushing aside the question of limitation by observing
that the respondent has been making representations from time to time
and as such the limitation would not come in his way.”
5. The learned Single Judge while dismissing the writ petition has rightly held
that appellant woke up from slumber and he has filed petition after a long delay of
almost a decade.
6. In view of the aforesaid and in the light of the judgments passed by the
Supreme Court, we are of the considered view that learned Single Judge has not
committed any error while dismissing the writ petition. So far as Writ Appeal
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filed by the appellant is concerned, the same is also dismissed in view of a huge
delay without any cogent explanation in that regard. Hence, no interference is
warranted.
7. Consequently, appeal fails and is hereby dismissed.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
ak
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