Uday Laxman Pawar v. The Secretary, Urban Development Department

11. Paragraph No.15 of the memo of the petition refers to cause of action, whereas para 16 refers to limitation period. For the sake of convenience, paragraph No.15 and 16 of the petition are transcribed in verbatim:-

12. From the facts referred to hereinbefore, the Petitioner in the year 2024, is seeking indulgence of this Court to order reinstatement /continuation of his service with the Respondent No.7, w.e.f. the year 1993. Claim of the Petitioner is based on Government Resolution dated 21.01.1980. Admittedly, the Respondent No.7 has rejected the request made by the Petitioner as a PAP, as way back as 05.04.1997 and 07.11.2002. Petitioner being aggrieved by the said decision of the Respondent No.7, was expected to assert his rights before an appropriate forum within a reasonable time. Petition does not contain any averment of the Petitioner having taken recourse to any proceeding prior to the filing of the present petition. Records placed before us leave no room for doubt that the Petitioner slept over his rights for a long duration.

13. The Hon’ble Supreme Court in the case of Gattu Lal Vs. Gulab Singh[1], has referred to a passage from Lindley on partnership, 12th edition on the concept of laches, which reads as follows:- “Independently of the Statutes of Limitation, a plaintiff may be precluded by his own laches from obtaining equitable relief. Laches presupposes not only lapse of time, but also the existence of circumstances which render it unjust to give relief to the plaintiff; and unless reasonable vigilance is shown in the prosecution of a claim to equitable relief, the court, acting on the maxim vigilantibus non dormientibus subveniunt leges, will decline to interfere.”

14. Faced with the said situation, Mr. Pawar learned Advocate for the Petitioner relies on the representations/complaints made by the Petitioner to the Respondent No.2, Respondent No.3 and 4, referred to in paragraph 12(1), (2) and (3) of the petition, by submitting that the cause of action for the Petitioner, to question the said decision is a continuing cause of action. Said contention of the Petitioner is liable to be rejected for the following reasons:- 1 1985 (1) SCC 432 a) Subject matter of the present petition is a service related claim by the Petitioner. The Respondent No.7 rejected the request for reinstatement of service, made by the Petitioner on 05.04.1997 and 07.11.2002. Petitioner sought to revive the said claim by his representations made in the year 2021 on wards. Petition is filed in the year 2024. Thus, on the face of the record, the claim of the Petitioner is inordinately delayed, thus a stale claim. b) Representations relating to matters which have become stale, can be rejected on such ground alone. Neither such belated representations nor replies to any such representations, can furnish a fresh cause or action or revive a stale or dead claim. Request for reinstatement is liable to be rejected as the claim of the Petitioner is neither a continuing wrong nor does the said claim create a continuing source of injury. If the inordinately delayed/stale claim of the Petitioner is reopened, it would affect the settled rights of third parties. c) This is not a case where the claim of the Petitioner is not considered by the Respondent No.7. On the contrary, the Respondent No.7 has specifically rejected the claim of the Petitioner for reinstatement/continuation of service. Petitioner ought to have taken recourse to test the rejection of his claim in the year 1997 and 2002, within a reasonable time, which the Petitioner has failed.

15. In the case of State of Tripura and Ors. Vs. Arabinda Chakraborty and Ors.[2] the Hon’ble Supreme Court has held that the period of limitation commences from the date on which the cause of action arises for the first time and simply by making representations in absence of any statutory provision/appeal, period of limitation would not get extended. Paragraph No.18 reads as under:- “18. It is a settled legal position that the period of limitation would commence from the date on which the cause of action takes place. Had there been any statute giving right of appeal to the respondent and if the respondent had filed such a statutory appeal, the period of limitation would have commenced from the date when the statutory appeal was decided. In the instant case, there was no provision with regard to any statutory appeal. The respondent kept on making representations one after another and all the representations had been rejected. Submission of the respondent to the effect that the period of limitation would commence from the date on which his last representation was rejected cannot be accepted. If accepted, it would be nothing but travesty of the law of limitation. One can go on making 2 2014 (6) SCC 460 representations for 25 years and in that event one cannot say that the period of limitation would commence when the last representation was decided. On this legal issue, we feel that the courts below committed an error by considering the date of rejection of the last representation as the date on which the cause of action had arisen. This could not have been done.”

16. In the case of Union of India and Ors. Vs. M. K. Sarkar[3], the Hon’ble Supreme Court in Paragraph No.15 has held as follows:- “15. When a belated representation in regard to a “stale” or “dead” issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.”

17. It is trite law that the doctrine of delay and laches should not be lightly brushed aside by a Writ Court exercising its extraordinary jurisdiction. The said doctrine is not an arbitrary or a technical doctrine. Such stale claims cannot be considered on sympathy or liberal approach.

18. In the case of State of Uttar Pradesh and Ors. Vs. the Hon’ble Supreme Court was considering a 3 2010 (2) SCC 59 service related claim which was inordinately delayed, obsolete stale and barred by principles of delay and laches. The Hon’ble Supreme Court relying on its earlier decisions has held that representations relating to matters which have become stale or barred by limitation can be rejected on that ground alone. In paragraph No.21, the Hon’ble Supreme Court has observed as follows:- “21. We reiterate that undue sympathy and a perceived liberal approach by a judicial forum can lead to significant adverse consequences. It not only gives rise to illegitimate expectations in the mind of fence sitting employees, but also leads to undue burdens on the public exchequer. Not only this, the indulgence shown by a Court solely on equitable considerations, dehors the law, breeds indiscipline in public services and incorrigible employees start looking for a dividend on the period of their absence or for dereliction of duty. While there is no evidence to suggest that the respondent deliberately absented herself from duty, the facts speak for themselves in that she failed to take any recourse provided under law for more than three decades. We may say at the cost of repetition that the respondent had hardly served as an untrained teacher on temporary basis for a period of 2½ years and in terms of the impugned judgment of the High Court, she has been held entitled to get arrears of pay of more than 40 years, besides all the retiral benefits. We are, therefore, of the view that the High Court ought not to have drawn adverse inferences against the appellants or put the entire onus on them to prove that the respondent was unjustifiably denied the resumption of duties. The approach of the High Court in this regard is completely erroneous and contrary to the settled principles of law. The impugned Judgment thus cannot sustain and is liable to be set aside.”

19. In addition to the fact of the Petitioner having sat silent and accepted the decision of the Respondent No.7, passed in the year 1997 and 2002, another factor that would weigh against the Petitioner is the fact that the Petitioner as on date of the petition, was 55 years of age. Vide Government Resolution dated 03.02.2007 the upper age limit for recruitment of Project Affected Persons in Group-C and Group-D, has been fixed to 45 years for general as well as reserved category.

20. Ms. Chavan, learned AGP has raised an objection to the maintainability of the petition. Article 226 of the Constitution does not, in terms impose any limitation or restrain on the exercise of power to issue writs. Issue of maintainability and entertainability has been explained by the Hon’ble Supreme Court in the case of Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-cum- Assessing Authority and Ors.[5] in paragraph No.4 has held as under:- “4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by article 226 of the Constitution having come across certain orders passed by the High Courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to article 329 and ordainment of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the High Courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under article 226 that has evolved through judicial precedents is that the High Courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition "not maintainable". In a long line of decisions, this court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the High Courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a High Court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a High Court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.”

21. In the light of the above position of law, we decline to entertain the present petition on the ground of delay and laches and having found the claim of the Petitioner being a stale claim.

22. The Writ Petition is accordingly dismissed with no orders as to cost. (ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)