SUPREME COURT OF INDIA
Chairman, U.P.Jal Nigam and Another
Vs
Jaswant Singh and Another
Appeal (Civil) 4790 of 2006 (Arising Out of S.L.P.(c) No.6207 of 2006) With Civil Appeal Nos.4791-4887 of 2006 (Arising Out of S.L.P. (c) Nos. 6296, 6380, 6382, 6384, 6386, 6388, 6389, 6390, 6391, 6392, 6393, 6395, 6396, 6397, 6398, 6400, 6401, 6403, 6404, 6405, 6406, 6408, 6409, 6415, 6418, 6431, 6432, 6433, 6437, 6445, 6448, 6475, 6864, 6914, 7357, 7394, 8976, 9265, 11828, 9373, 10089, 5208, 5321, 5322, 5339, 5340, 5343, 5360, 5369, 5373, 5379, 5383, 7122, 12975, 9968, 9980, 11830, 9998, 10003, 10072, 12000, 12003, 12001, 11952, 11953, 12892, 12915, 14354, 12917, 12918, 12970, 14350, 14355, 14349, 13225, 14377 , 14348, 14352, 14353, 14816, 14817, 8587, 8619, 8633, 8676, 8726, 8727, 8733, 8737, 8752, 8753, 8801, 8810, 11870, 11871, 11866 & 11860 of 2006)
(Dr. Ar. Lakshmanan and A. K. Mathur, JJ)
10.11.2006
A. K. MATHUR, J.
Leave granted.
All this batch of appeals involve similar questions of law and fact, therefore,
they are disposed of by this common order.
All these respondents are the employees of the Uttar Pradesh Jal Nigam (
hereinafter to be referred to as 'the Nigam') and they were retired on
attaining the age of superannuation at 58 years. Some of them filed writ
petitions in the High Court of Judicature at Allahabad challenging the
retirement of the employees of the Nigam on attaining the age of 58 years
whereas the State Government employees were allowed to continue up to the age
of 60 years and therefore, they should also be allowed to continue up to the
age of 60 years. The writ petitions filed before the High Court failed and
against that Civil Appeal No.7840 of 2002 and batch of other appeals were filed
before this Court. This Court disposed of the case of Harwindra Kumar along
with other appeals and held that employees of Nigam are entitled to continue up
to 60 years. This has been reported in . The operative portion of the
said judgment reads as under :
" 10. For the foregoing reasons, we are of the view that so long as
Regulation 31 of the Regulations is not amended, 60 years which is the age of
superannuation of government servants employed under the State of Uttar Pradesh
shall be applicable to the employees of the Nigam. However, it would be open to
the Nigam with the previous approval of the State Government to make suitable
amendment in Regulation 31 and alter the service conditions of employees of the
Nigam, including their age of superannuation. It is needless to say that if it
is so done, the same shall be prospective.
11. For the foregoing reasons, the appeals as well as writ petitions are
allowed, orders passed by the High Court dismissing the writ petitions as well
as those by the Nigam directing that the appellants of the civil appeals and
the petitioners of the writ petitions would superannuate upon completion of the
age of 58 years are set aside and it is directed that in case the employees
have been allowed to continue up to the age of 60 years by virtue of some
interim order, no recovery shall be made from them but in case, however, they
have not been allowed to continue after completing the age of 58 years by
virtue of erroneous decision taken by the Nigam for no fault of theirs, they
would be entitled to payment of salary for the remaining period up to the age
of 60 years which must be paid to them within a period of three months from the
date of receipt of copy of this order by the Nigam. There shall be no order as
to costs."
It appears that during the pendency of the appeals and writ petitions before
this Court and after disposal of the same by this Court, a spate of writ
petitions followed in the High Court by the employees who had retired long
back. Some of the petitions were filed by the employees who retired on
attaining the age of 58 years long back. However, some were lucky to get
interim orders allowing them to continue in service. Number of writ petitions
were filed in the High Court in 2005 on various dates after the judgment in the
case of Harwindra Kumar (supra) and some between 2002 and 2005. All those writ
petitions were disposed of in the light of the judgment in the case of
Harwindra Kumar (supra) and relief was given to them for continuing in service
up to the age of 60 years. Hence, all these appeals arise against various
orders passed by the High Court from time to time.
So far as the principal issue is concerned, that has been settled by this
Court. Therefore, there is no quarrel over the legal proposition. But the only
question is grant of relief to such other persons who were not vigilant and did
not wake up to challenge their retirement and accepted the same but filed writ
petitions after the judgment of this Court in the case of Harwindra Kumar
(supra). Whether they are entitled to same relief or not ? Therefore, a serious
question that arises for consideration is whether the employees who did not
wake up to challenge their retirement and accepted the same, collected their post
retirement benefits, can such persons be given the relief in the light of the
subsequent decision delivered by this Court?
The question of delay and laches has been examined by this Court in a series of
decisions and laches and delay has been considered to be an important factor in
exercise of the discretionary relief under Article 226 of the Constitution Of India, 1950. When a person who is not
vigilant of his rights and acquiesces with the situation, can his writ petition
be heard after a couple of years on the ground that same relief should be
granted to him as was granted to person similarly situated who was vigilant
about his rights and challenged his retirement which was said to be made on
attaining the age of 58 years. A chart has been supplied to us in which it has
been pointed out that about 9 writ petitions were filed by the employees of the
Nigam before their retirement wherein their retirement was somewhere between
30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim
order was passed. They were granted interim order. Thereafter a spate of writ
petitions followed in which employees who retired in the years 2001, 2002,
2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much
after their retirement. Whether such persons should be granted the same relief
or not?
Learned senior counsel for the appellants has invited our attention to various
decisions to impress upon that persons who are guilty of such laches and
acquiesced with the situation should not be granted any relief because it is
going to cost the Nigam a heavy financial burden to the tune of Rs.17, 80, 43,
108/-. Therefore, relief should be confined to those persons who were
continuing in service and filed their writ petitions in time but not to all and
sundry who woke up to file the writ petitions much after their retirement. In
this connection, our attention was invited to a decision of this Court in the
case of M/s. Rup Diamonds & Ors. v. Union of India & Ors. reported in
, wherein their Lordships observed that those people who were sitting on
the fence till somebody else took up the matter to the court for refund of
duty, cannot be given the benefit. In that context, their Lordships held as
follows :
" Petitioners are re-agitating claims which they had not pursued for
several years. Petitioners were not vigilant but were content to be dormant and
chose to sit on the fence till somebody else's case came to be decided. Their
case cannot be considered on the analogy of one where a law had been declared
unconstitutional and void by a court, so as to enable persons to recover monies
paid under the compulsion of a law later so declared void. There is also an
unexplained, inordinate delay in preferring the present writ petition which is
brought after a year after the first rejection. As observed by the Court in
Durga Prashad case, the exchange position of this country and the policy of the
government regarding international trade varies from year to year. In these
matters it is essential that persons who are aggrieved by orders of the
government should approach the High Court after exhausting the remedies
provided by law, rule or order with utmost expedition. Therefore, these delays
are sufficient to persuade the Court to decline to interfere. If a right of
appeal is available, this order rejecting the writ petition shall not prejudice
petitioners' case in any such appeal. "
Our attention was also invited to a decision of this Court in the case of State
of Karnataka & Ors. v. S.M.Kotrayya & Ors. reported in 8. In that case the respondents woke up to claim the
relief which was granted to their colleagues by the Tribunal with an
application to condone the delay. The Tribunal condoned the delay. Therefore,
the State approached this Court and this Court after considering the matter
observed as under:
“Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub-section (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay."
Similarly, in the case of Jagdish Lal & Ors. v. State of Haryana & ors.
reported in 2, this Court reaffirmed the rule
if a person chose to sit over the matter and then woke up after the decision of
the Court, then such person cannot stand to benefit. In that case it was
observed as follows :
“The delay disentitles a party to discretionary relief under Article 226 or
Article 32 of the Constitution Of India, 1950. The
appellants kept sleeping over their rights for long and woke up when they had
the impetus from Vir Pal Singh Chauhan case. The appellants' desperate attempt
to redo the seniority is not amenable to judicial review at this belated
stage."
In the case of Union of India & Ors. v. C.K. Dharagupta & Ors. reported
in 0, it was observed as follows :
“We, however, clarify that in view of our finding that the judgment of the
Tribunal in R.P.Joshi gives relief only to Joshi, the benefit of the said
judgment of the Tribunal cannot be extended to any other person. The respondent
C.K.Dharagupta (since retired) is seeking benefit of Joshi case. In view of our
finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could
only be given to Joshi and nobody else, even Dharagupta is not entitled to any
relief."
In the case of Government of W.B. v. Tarun K. Roy & Ors. reported in
2004 (1) SCC 347, their Lordships considered delay as serious factor and
have not granted relief. Therein it was observed as follows :
“The respondents furthermore are not even entitled to any relief on the
ground of gross delay and laches on their part in filing the writ petition. The
first two writ petitions were filed in the year 1976 wherein the respondents
herein approached the High Court in 1992. In between 1976 and 1992 not only two
writ petitions had been decided, but one way or the other, even the matter had
been considered by this Court in Debdas Kumar. The plea of delay, which
Mr.Krishnamani states, should be a ground for denying the relief to the other
persons similarly situated would operate against the respondents. Furthermore,
the other employees not being before this Court although they are ventilating
their grievances before appropriate courts of law, no order should be passed
which would prejudice their cause. In such a situation, we are not prepared to
make any observation only for the purpose of grant of some relief to the
respondents to which they are not legally entitled to so as to deprive others
there from who may be found to be entitled thereto by a court of law."
The statement of law has also been summarized in Halsbury's Laws of England,
Para 911 , pg. 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. "
In view of the statement of law as summarized above, the respondents are guilty
since the respondents has acquiesced in accepting the retirement and did not
challenge the same in time. If they would have been vigilant enough, they could
have filed writ petitions as others did in the matter. Therefore, whenever it
appears that the claimants lost time or while away and did not rise to the
occasion in time for filing the writ petitions, then in such cases, the Court
should be very slow in granting the relief to the incumbent. Secondly, it has
also to be taken into consideration the question of acquiescence or waiver on
the part of the incumbent whether other parties are going to be prejudiced if
the relief is granted. In the present case, if the respondents would have
challenged their retirement being violative of the provisions of the Act, perhaps
the Nigam could have taken appropriate steps to raise funds so as to meet the
liability but by not asserting their rights the respondents have allowed time
to pass and after a lapse of couple of years, they have filed writ petitions
claiming the benefit for two years. That will definitely require the Nigam to
raise funds which is going to have serious financial repercussion on the
financial management of the Nigam. Why the Court should come to the rescue of
such persons when they themselves are guilty of waiver and acquiescence.
As against this, our attention was invited to a decision of this Court in the
case of Dayal Singh & Ors. v. Union of India & Ors. reported in
In that case their Lordships observed that when the High Court exercised
discretion and condoned the delay, it is not proper for the Supreme Court at
the SLP stage to set aside the High Court's order on that ground alone and more
so, where the impugned judgment is legally sustainable. This case does not
provide any assistance to the respondents.
Learned counsel for the appellants has also pointed out that at this belated
stage if the relief is given to the respondents who have retired and accepted
the retirement, that will cause a huge burden to the Nigam to the tune of
Rs.17, 80, 43, 108/- and there is no sufficient funds for incurring such a huge
amount at this belated stage. This will completely ruin the financial condition
of the Nigam if all the persons who were not vigilant and did not take up their
cause before the Court, it would prove a great set back to the Nigam. In this
regard, a reference was made to a decision of this Court in the case of
Krishena Kumar v. Union of India & Ors. etc. etc. reported in . In
that case the question was to grant pensionary benefit to the provident fund
holders of the railways. A submission was made if the Court feels that a
positive direction cannot be given to the government, it was prayed that at
least an option should be given to the respondents either to withdraw the
benefit of switching over to pension from everyone or to give it to the
petitioners as well, so that the discrimination must go. This Court negatived
the submission and it was observed as follows:
“We are not inclined to accept either of these submissions. The PF retirees
and pension retirees having not belonged to a class, there is no
discrimination. In the matter of expenditure includible in the Annual Financial
Statement, this Court has to be loath to pass any order or give any direction,
because of the division of functions between the three co-equal organs of the
government under the Constitution Of India, 1950."
Therefore, in case at this belated stage if similar relief is to be given to
the persons who have not approached the Court that will unnecessarily
overburden the Nigam and the Nigam will completely collapse with the liability
of payment to these persons in terms of two years' salary and increased benefit
of pension and other consequential benefits. Therefore, we are not inclined to
grant any relief to the persons who have approached the Court after their
retirement. Only those persons who have filed the writ petitions when they were
in service or who have obtained interim order for their retirement, those
persons should be allowed to stand to benefit and not others. We have
been given a chart of those nine persons, who filed writ petitions and obtained
stay & are continuing in service. They are as follows:
1. Shri Bhawani Sewak Shukla
2. Shri Vijay Bahadur Rai
3. Shri Girija Shanker
4. Shri Yogendra Prakash Kulshersht
5. Shri Vinod Kumar Bansal
6. Shri Pradumn Prashad Mishra
7. Shri Banke Bihari Pandey
8. Shri Yashwant Singh
9. Shri Chandra Shekhar and the following persons filed Writ Petitions before
retirement but no stay order granted.
1. Shri Gopal Singh Dangwal (W/P No. 35384/05 vide order dated 5.5.2005)
2. Shri R.R. Gautam (W/P No. 45495/05 vide order dated 15.6.05)
The benefits shall only be confined to above mentioned persons who have filed
writ petitions before their retirement or they have obtained interim order
before their retirement. The appeals filed against these persons by the Nigam
shall fail and the same are dismissed. Rest of the appeals are allowed and
orders passed by the High Court are set aside. There would be no order as to
costs.
It is submitted that contempt petitions were filed before the High Court. In
view of the order passed in this batch of appeals, the contempt petitions will
not survive and the same are dismissed.