# Bhagirath Prasad Sharma v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Writ-A No. 9709 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagirath-prasad-sharma-v-state-of-u-p-ors-52224
- **Pages:** 11

## Headnote

years-law is well settled that a claim for arrears
of salary for a period earlier than three years
cannot be entertained by the High Court-Writ
filed in 2024 for claim of 2006 to 30.06.2009-
Petition suffers from latches.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

7 All. Bhagirath Prasad Sharma Vs. State of U.P. & Ors.
123
prolonged sitting or prolonged desk work/
writing work as per the specific opinion of
the Orthopedic Surgeon, her life may be
endangered, in that way, her Fundamental
Right enshrined under Article 21 of the
Constitution of India would be violated.
Every citizen of the country is having
Fundamental Right to life and personal
liberty and that right to life may not be
violated without having any cogent and
proper reason.

12. The reason so indicated by the
employer is not proper in the case of the
present petitioner to the effect that if the
Department is not having proper employees
and the petitioner is compelled to discharge
her
duties
in
such
critical
medical
condition, she may likely to loose her life
or she may likely to cause damage to
herself. This is not a case where the
petitioner
has
applied
for
voluntary
retirement in a casual manner only after
completing the requisite term of service
and attaining the age but it appears that her
application
for
seeking
voluntary
retirement has been filed under serious
compelling circumstances. Therefore, the
reason so indicated in the impugned order
suffers from perversity, arbitrariness and
given without proper application of mind.

13. Accordingly, this writ petition
is allowed. The order dated 23.08.2023
passed by opposite party no.2, contained in
Annexure no.1 to the writ petition, is set
aside/ quashed.

14. Opposite party no.2 i.e.
Director (Administration), Medical and
Health Services, U.P., Lucknow is directed
to pass a fresh order, strictly in accordance
with law, considering the medical and
physical ailment of the petitioner and also
in the light of the observation so given
herein-above. After passing the appropriate
order, consequential order shall be passed
by the opposite party no.2 forthwith,
preferably within a period of four weeks
from the date of receipt of certified copy of
this order and the petitioner shall be paid
all post retiral dues/ benefits strictly in
accordance with law.

15. No order as to costs.
----------
(2024) 7 ILRA 123
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 9709 of 2024

Bhagirath Prasad Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Om Prakash Chaube

Counsel for the Respondents:
C.S.C.

Delay and Latches-Petitioner's claim for
payment of difference in salary for the post of
officiating Principal for 2006 to 30.06.2009raised the claim for first time after more than 15
years-law is well settled that a claim for arrears
of salary for a period earlier than three years
cannot be entertained by the High Court-Writ
filed in 2024 for claim of 2006 to 30.06.2009-
Petition suffers from latches.

W.P. dismissed. (E-9)

List of Cases cited:

1. Jai Prakash Narayan Singh Vs St. of U.P.,
2014 SCC OnLine All 15392 (2014) 6 All LJ
668
124 INDIAN LAW REPORTS ALLAHABAD SERIES
2. St. of Uttaranchal & anr. Vs Sri Shiv Charan
Singh Bhandari & ors.: (2013) 12 SCC 179

3. St. of W. B. Vs Debabrata Tiwari: 2023 SCC
OnLine SC 219

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Om Prakash Chaube, the
learned counsel for the petitioner and Sri
Pradipta
Kumar
Shahi,
the
learned
Additional Chief Standing Counsel for the
State respondents.

2. By means of the instant writ
petition filed under Article 226 of the
Constitution of India, the petitioner has
challenged the validity of an order dated
20.01.2024 passed by the respondent no. 5
-
Deputy
Director
of
Education
(Secondary),
Jhansi
rejecting
the
petitioner's representation for payment of
difference in salary for the post of
officiating Principal for the period June,
2006 to 30.06.2009, on the ground that
there was no provision of payment of salary
of a post held on officiating basis at that
point of time.

3. Earlier the petitioner had filed a
Writ-A No. 227 of 2023 with the following
prayers: -

 "i. To issue a writ, order or
direction in the nature of mandamus
commanding the respondents to make the
payment
of
gratuity
amount
to
the
petitioner along with 9% interest with in
stipulated time.

 ii. To issue a writ, order or
direction in the nature of mandamus
commanding the respondent No.3 and 4 to
consider the claim/representation dated
14.12.2022/16.12.2022 submitted by the
petitioner before him with in stipulated
time."

4. The aforesaid Writ A No. 227
of 2023 was decided by an order dated
15.02.2023, which states that: -

 "The only prayer made by the
counsel for the petitioner to direct the
respondent no.5 to pass appropriate orders
on
the
representation
made by
the
petitioner dated 14.12.2022, copy of which
is appended as Annexure-9 to the writ
petition.

 On the other hand, it is argued by
the learned Standing Counsel that the
respondent no.5 namely Deputy Director of
Education (Secondary) Jhansi Division
Jhansi will take a decision in the matter
within a period of six weeks thereafter.

 At this stage, a prayer has been
made by the counsel for the petitioner that
petitioner may be permitted to make a fresh
representation.

 In view of the above, without
entering in to the merits of the case, the
present writ petition is disposed of with
liberty to the petitioner to file a fresh
comprehensive representation ventilating
all his grievances before the respondent no.
5/Deputy
Director
of
Education
(Secondary) Jhansi Division Jhansi within
a period of three weeks from today along
with certified copy of this order and in case
any such representation is filed by the
petitioner before the respondent no. 5
within the time indicated hereinabove, he
shall consider and decide the same strictly
in accordance with law by a speaking and
reasoned order as expeditiously and
preferably within a period of six weeks
from
the
date
of
filing
of
such
7 All. Bhagirath Prasad Sharma Vs. State of U.P. & Ors.
125
representation by the petitioner before
him."

5. Apparently, the petitioner had
not sought a writ of mandamus for payment
of difference in salary for the post of
officiating Principal for the period January
2006 to 30.06.2009 even in the earlier writ
petition and he had merely sought a
direction for disposal of his representations
dated 14.12.2022/16.12.2022, wherein he
had claimed payment of difference in
salary as aforesaid.

6. Thus it appears that the
petitioner raised the claim of payment of
difference in salary for the period June
2006 to 2009 for the first time through his
representation
dated
14.12.2022/16.12.2022, i.e., that is after
expiry of more than 13 years.

7. By means of the impugned
order
dated
20.01.2024,
the
Deputy
Director Education (Secondary Education)
has rejected the petitioner's representation
on the ground that the petitioner had
worked as officiating principle for the
period June 2006 to 30.06.2009 and at that
point of time there was no provision for
making payment of salary of Principal to a
teacher who worked on the post on
officiating basis.

8. In is relevant to note that a Full
bench of this Court had held in Jai
Prakash Narayan Singh v. State of U.P.,
2014 SCC OnLine All 15392 = (2014) 6
All LJ 668, that once the nature of that
power is construed as a power to make an
appointment albeit on an officiating basis
till a regularly selected candidate becomes
available, there would be no justification to
deny a claim for the payment of salary to
such a person who has been appointed on
an officiating basis. Where a person has
been appointed as an officiating principal
until a regularly selected candidate takes
charge, this involves an assumption of
duties and responsibilities of a greater
importance than those attaching to the post
of a teacher. Hence, a person who is
appointed as an officiating principal under
the Statutes of the University until a
regularly selected candidate is made
available, would be entitled to the payment
of salary attached to the post of principal. It
was only after the aforesaid Full Bench
judgment passed on 26.09.2014, that a
person working on a post on officiating
basis was held to be entitled to get salary
for the post.

9. Even after the aforesaid law was
laid down on 26.09.2014, the petitioner has
submitted the representation claiming the
difference of salary of the post held by him
substantively and the post which he held on
officiating basis during the period June
2006
to
30.06.2009,
on
14/12/2022/16.12.2022 and he has filed the
Writ Petition claiming the aforesaid amount
in the year 2024.

10. Although, the provisions of the
Limitation Act, 1963 do not apply to the
proceedings under Article 226 of the
Constitution of India, it is settled law that a
person should approach the Court for
redressal of his grievances with reasonable
promptitude and writ petitions raising stale
claims would not be entertained by this
Court.

11. The learned Counsel for the
petitioner has relied upon a judgment in the
case
of
Union
of
India v. Tarsem
Singh, (2008) 8 SCC 648, wherein the
Hon'ble Supreme Court summarized the
law as follows: -
126 INDIAN LAW REPORTS ALLAHABAD SERIES
 "To summarise, normally, a
belated service related claim will be
rejected on the ground of delay and laches
(where remedy is sought by filing a writ
petition) or limitation (where remedy is
sought
by
an
application
to
the
Administrative
Tribunal). One
of
the
exceptions to the said rule is cases relating
to a continuing wrong. Where a service
related claim is based on a continuing
wrong, relief can be granted even if there is
a long delay in seeking remedy, with
reference to the date on which the
continuing wrong commenced, if such
continuing wrong creates a continuing
source of injury. But there is an exception
to the exception. If the grievance is in
respect of any order or administrative
decision which related to or affected
several others also, and if the reopening of
the issue would affect the settled rights of
third parties, then the claim will not be
entertained. For example, if the issue
relates to payment or refixation of pay or
pension, relief may be granted in spite of
delay as it does not affect the rights of third
parties. But if the claim involved issues
relating to seniority or promotion, etc.,
affecting others, delay would render the
claim
stale
and
doctrine
of
laches/limitation will be applied. Insofar as
the consequential relief of recovery of
arrears for a past period is concerned, the
principles relating to recurring/successive
wrongs will apply. As a consequence, the
High Courts will restrict the consequential
relief relating to arrears normally to a
period of three years prior to the date of
filing of the writ petition."
(Emphasis added)

12. The same principle of law was
reiterated in State of M.P. v. Yogendra
Shrivastava: (2010) 12 SCC 538, in which
it was held that: -
 "18....Where the issue relates to
payment or fixation of salary or any
allowance, the challenge is not barred by
limitation or the doctrine of laches, as the
denial of benefit occurs every month when
the salary is paid, thereby giving rise to a
fresh cause of action, based on continuing
wrong. Though the lesser payment may be
a consequence of the error that was
committed at the time of appointment, the
claim for a higher allowance in accordance
with the Rules (prospectively from the date
of application) cannot be rejected merely
because it arises from a wrong fixation
made several years prior to the claim for
correct payment. But in respect of grant of
consequential relief of recovery of arrears
for the past period, the principle relating to
recurring and successive wrongs would
apply. Therefore the consequential relief
of payment of arrears will have to be
restricted to a period of three years prior
to the date of the original application."

13. The learned Counsel for the
petitioner has relied upon a judgment
rendered by a Division bench of this Court
in Syed Mohammad Suleman versus
State of U. P. and 2 Others: Special
Appeal Defective No. 655 of 2015 decided
on 15.09.2015, wherein this Court had
followed the aforesaid dictum of law laid
down in Tarsem Singh (Supra).

14. The learned counsel for the
petitioner has relied upon the judgment of
Division Bench of this Court in Jwala Devi
versus State of U.P. and 5 others: Special
Appeal Defective No. 768 of 2021 decided
on 11.01.2022. The relevant portion of the
order passed by an Hon'ble Single Judge of
this Court in Jwala Devi versus State of
U.P. and 5 others: Writ A No. 6549 of
2021, decided on 17.08.2021, is being
reproduced below: -
7 All. Bhagirath Prasad Sharma Vs. State of U.P. & Ors.
127
 "Learned
counsel
for
the
petitioner states that the payment of
gratuity
is
a
recurring
cause
and,
therefore, the question of delay would not
arise. Arguments advanced on behalf of the
petitioner would merit acceptance where
the grievance is in respect of payment of
pension as such amount becomes due and
payable each month. This is not the
position with regard to gratuity as the
amount is paid in lump sum either at the
time of retirement or death of the employee
concerned. Unexplained latches in raising
grievance, in that regard cannot be
explained on the ground that the petitioner
has a recurring cause."

15. Allowing the Special Appeal
filed against the aforesaid order, the
Division Bench held that: -

 "It is settled law that payment of
gratuity is the right of the employee,
provided gratuity is actually payable in
accordance with law. Non-payment of
gratuity, in the event it is legally payable, is
the statutory responsibility of the employer.
Therefore, the writ petition of the widow of
the deceased employee asking for payment
of gratuity cannot be dismissed merely on
the ground of laches, unless it is found that
the gratuity is not legally payable."

16. In Jwala Devi (Supra), the
question of effect of latches on a Writ
Petition filed for claiming payment of
arrears of salary was not decided and,
therefore, this judgment is not relevant for
deciding this issue.

17. In paragraph 21 of the
judgment in the case of Bichitrananda
Behera versus State of Orissa, 2023 SCC
OnLine SC 1307, the Hon'ble Supreme
Court has referred to some precedents on
the point of latches and the relevant
passage is being reproduced below: -

 "21. Profitably,
we
may
reproduce relevant passages from certain
decisions of this Court:

 (A) Union
of
India v. Tarsem
Singh, (2008) 8 SCC 648:

 "To summarise, normally, a
belated service related claim will be
rejected on the ground of delay and laches
(where remedy is sought by filing a writ
petition) or limitation (where remedy is
sought
by
an
application
to
the
Administrative
Tribunal). One
of
the
exceptions to the said rule is cases relating
to a continuing wrong. Where a service
related claim is based on a continuing
wrong, relief can be granted even if there is
a long delay in seeking remedy, with
reference to the date on which the
continuing wrong commenced, if such
continuing wrong creates a continuing
source of injury. But there is an exception
to the exception. If the grievance is in
respect of any order or administrative
decision which related to or affected
several others also, and if the reopening of
the issue would affect the settled rights of
third parties, then the claim will not be
entertained. For example, if the issue
relates to payment or refixation of pay or
pension, relief may be granted in spite of
delay as it does not affect the rights of third
parties. But if the claim involved issues
relating to seniority or promotion, etc.,
affecting others, delay would render the
claim
stale
and
doctrine
of
laches/limitation will be applied. Insofar as
the consequential relief of recovery of
arrears for a past period is concerned, the
principles relating to recurring/successive
wrongs will apply. As a consequence, the
128 INDIAN LAW REPORTS ALLAHABAD SERIES
High Courts will restrict the consequential
relief relating to arrears normally to a
period of three years prior to the date of
filing of the writ petition."

(emphasis supplied by the Hon'ble
Supreme Court)

 (B) Union
of
India v. N
Murugesan, (2022) 2 SCC 25:

 "Delay, laches and acquiescence

 20. The principles governing
delay, laches, and acquiescence are
overlapping and interconnected on many
occasions. However, they have their
distinct characters and distinct elements.
One can say that delay is the genus to
which laches and acquiescence are species.
Similarly, laches might be called a genus to
a species by name acquiescence. However,
there may be a case where acquiescence is
involved, but not laches. These principles
are common law principles, and perhaps
one could identify that these principles find
place in various statutes which restrict the
period of limitation and create nonconsideration of condonation in certain
circumstances. They are bound to be
applied by way of practice requiring
prudence of the court than of a strict
application of law. The underlying
principle governing these concepts would
be one of estoppel. The question of
prejudice is also an important issue to be
taken note of by the court.

 Laches

 21. The word "laches" is derived
from
the
French
language
meaning
"remissness
and
slackness".
It
thus
involves unreasonable delay or negligence
in pursuing a claim involving an equitable
relief while causing prejudice to the other
party. It is neglect on the part of a party to
do an act which law requires while
asserting a right, and therefore, must stand
in the way of the party getting relief or
remedy.

 22. Two essential factors to be
seen are the length of the delay and the
nature of acts done during the interval. As
stated, it would also involve acquiescence
on the part of the party approaching the
court apart from the change in position in
the interregnum. Therefore, it would be
unjustifiable for a Court of Equity to confer
a remedy on a party who knocks its doors
when his acts would indicate a waiver of
such a right. By his conduct, he has put the
other party in a particular position, and
therefore, it would be unreasonable to
facilitate a challenge before the court.
Thus, a man responsible for his conduct on
equity is not expected to be allowed to avail
a remedy.

 23. A defence of laches can only
be allowed when there is no statutory bar.
The question as to whether there exists a
clear case of laches on the part of a person
seeking a remedy is one of fact and so also
that of prejudice. The said principle may
not have any application when the
existence of fraud is pleaded and proved
by the other side. To determine the
difference between the concept of laches
and acquiescence is that, in a case
involving mere laches, the principle of
estoppel would apply to all the defences
that are available to a party. Therefore, a
defendant can succeed on the various
grounds raised by the plaintiff, while an
issue
concerned
alone
would
be
amenable to acquiescence.

 Acquiescence
7 All. Bhagirath Prasad Sharma Vs. State of U.P. & Ors.
129
 24. We have already discussed
the relationship between acquiescence on
the one hand and delay and laches on the
other.

 25. Acquiescence would mean a
tacit or passive acceptance. It is implied
and reluctant consent to an act. In other
words, such an action would qualify a
passive assent. Thus, when acquiescence
takes place, it presupposes knowledge
against a particular act. From the
knowledge
comes
passive
acceptance,
therefore instead of taking any action
against any alleged refusal to perform the
original
contract,
despite
adequate
knowledge of its terms, and instead being
allowed
to
continue
by
consciously
ignoring it and thereafter proceeding
further, acquiescence does take place. As a
consequence, it reintroduces a new implied
agreement between the parties. Once such
a situation arises, it is not open to the party
that acquiesced itself to insist upon the
compliance of the original terms. Hence,
what is essential, is the conduct of the
parties. We only dealt with the distinction
involving a mere acquiescence. When
acquiescence is followed by delay, it may
become laches. Here again, we are inclined
to hold that the concept of acquiescence is
to be seen on a case-to-case basis."

(emphasis supplied by the Hon'ble
Supreme Court)

 (C) Chairman, State Bank of
India v. M J James, (2022) 2 SCC 301:

 "36. What is a reasonable time is
not to be put in a straitjacket formula or
judicially codified in the form of days, etc.
as
it
depends
upon
the
facts
and
circumstances of each case. A right not
exercised for a long time is nonexistent.
Doctrine of delay and laches as well as
acquiescence are applied to non-suit the
litigants who approach the court/appellate
authorities belatedly without any justifiable
explanation for bringing action after
unreasonable delay. In the present case,
challenge to the order of dismissal from
service by way of appeal was after four
years and five months, which is certainly
highly belated and beyond justifiable time.
Without satisfactory explanation justifying
the delay, it is difficult to hold that the
appeal was preferred within a reasonable
time.
Pertinently,
the
challenge
was
primarily
on
the
ground
that
the
respondent
was
not
allowed
to
be
represented by a representative of his
choice. The respondent knew that even if he
were to succeed on this ground, as has
happened in the writ proceedings, fresh
inquiry would not be prohibited as finality
is not attached unless there is a legal or
statutory bar, an aspect which has been
also noticed in the impugned judgment.
This is highlighted to show the prejudice
caused to the appellants by the delayed
challenge.
We
would,
subsequently,
examine the question of acquiescence and
its judicial effect in the context of the
present case.

 xxx

 38. In Ram
Chand v. Union
of
India
[Ram
Chand v. Union
of
India, (1994) 1 SCC 44] and State of
U.P. v. Manohar
[State
of
U.P. v. Manohar, (2005) 2 SCC 126] this
Court observed that if the statutory
authority has not performed its duty within
a reasonable time, it cannot justify the
same by taking the plea that the person
who has been deprived of his rights has not
approached the appropriate forum for
relief. If a statutory authority does not pass
130 INDIAN LAW REPORTS ALLAHABAD SERIES
any orders and thereby fails to comply with
the statutory mandate within reasonable
time, they normally should not be permitted
to take the defence of laches and delay. If
at all, in such cases, the delay furnishes a
cause of action, which in some cases as
elucidated in Union of India v. Tarsem
Singh
[Union
of
India v. Tarsem
Singh, (2008) 8 SCC 648 : (2008) 2 SCC
(L&S) 765] may be continuing cause of
action. The State being a virtuous litigant
should meet the genuine claims and not
deny them for want of action on their part.
However, this general principle would not
apply when, on consideration of the facts,
the court concludes that the respondent had
abandoned his rights, which may be either
express or implied from his conduct.
Abandonment implies intentional act to
acknowledge, as has been held in para 6
of Motilal Padampat Sugar Mills Co.
Ltd. v. State of U.P. [Motilal Padampat
Sugar
Mills
Co.
Ltd. v. State
of
U.P., (1979) 2 SCC 409 : 1979 SCC (Tax)
144]
Applying
this
principle
of
acquiescence to the precept of delay and
laches,
this
Court
in U.P.
Jal
Nigam v. Jaswant
Singh
[U.P.
Jal
Nigam v. Jaswant Singh, (2006) 11 SCC
464 : (2007) 1 SCC (L&S) 500] after
referring to several judgments, has
accepted the following elucidation in
Halsbury's Laws of England: (Jaswant
Singh case [U.P. Jal Nigam v. Jaswant
Singh, (2006) 11 SCC 464 : (2007) 1 SCC
(L&S) 500], SCC pp. 470-71, paras 1213)

 "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.'

 13. In view of the statement of
law as summarised above, the respondents
are guilty since the respondents have
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
whiled it 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
7 All. Bhagirath Prasad Sharma Vs. State of U.P. & Ors.
131
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
repercussions on the financial management
of the Nigam. Why should the court come to
the rescue of such persons when they
themselves are guilty of waiver and
acquiescence?"

 39. Before proceeding further, it
is important to clarify distinction between
"acquiescence" and "delay and laches".
Doctrine of acquiescence is an equitable
doctrine which applies when a party having
a right stands by and sees another dealing
in a manner inconsistent with that right,
while the act is in progress and after
violation is completed, which conduct
reflects his assent or accord. He cannot
afterwards
complain. [See Prabhakar v. Sericulture
Deptt., (2015) 15 SCC 1 : (2016) 2 SCC
(L&S) 149. Also, see Gobinda Ramanuj
Das Mohanta v. Ram Charan Das, 1925
SCC OnLine Cal 30 : AIR 1925 Cal 1107]
In literal sense, the term acquiescence
means
silent
assent,
tacit
consent,
concurrence,
or
acceptance,
[See Vidyavathi Kapoor Trust v. CIT, 1991
SCC OnLine Kar 331 : (1992) 194 ITR
584] which
denotes
conduct
that
is
evidence of an intention of a party to
abandon an equitable right and also to
denote conduct from which another party
will be justified in inferring such an
intention. [See Krishan
Dev v. Ram
Piari, 1964 SCC OnLine HP 5 : AIR 1964
HP 34] Acquiescence can be either direct
with
full
knowledge
and
express
approbation, or indirect where a person
having the right to set aside the action
stands by and sees another dealing in a
manner inconsistent with that right and in
spite of the infringement takes no action
mirroring acceptance. [See "Introduction",
U.N. Mitra, Tagore Law Lectures - Law
of Limitation and Prescription, Vol. I,
14th Edn., 2016.] However, acquiescence
will not apply if lapse of time is of no
importance or consequence.

 40. Laches unlike limitation is
flexible. However, both limitation and
laches destroy the remedy but not the right.
Laches like acquiescence is based upon
equitable considerations, but laches unlike
acquiescence imports even simple passivity.
On the other hand, acquiescence implies
active assent and is based upon the rule of
estoppel in pais. As a form of estoppel, it
bars a party afterwards from complaining
of the violation of the right. Even indirect
acquiescence implies almost active consent,
which is not to be inferred by mere silence
or inaction which is involved in laches.
Acquiescence in this manner is quite
distinct from delay. Acquiescence virtually
destroys
the
right
of
the
person. [See Vidyavathi
Kapoor
Trust v. CIT, 1991
SCC
OnLine
Kar
331 : (1992) 194 ITR 584] Given the
aforesaid
legal
position,
inactive
acquiescence on the part of the respondent
can be inferred till the filing of the appeal,
and not for the period post filing of the
appeal. Nevertheless, this acquiescence
being in the nature of estoppel bars the
respondent from claiming violation of the
right of fair representation."

(emphasis supplied by the Hon'ble
Supreme Court)

18. In Mrinmoy Maity v.
Chhanda Koley, 2024 SCC OnLine SC
132 INDIAN LAW REPORTS ALLAHABAD SERIES
551, the Hon'ble Supreme Court held that:
-

 "9. ...An
applicant
who
approaches the court belatedly or in other
words sleeps over his rights for a
considerable period of time, wakes up from
his deep slumber ought not to be granted
the extraordinary relief by the writ courts.
This Court time and again has held that
delay defeats equity. Delay or latches is
one of the factors which should be born in
mind by the High Court while exercising
discretionary powers under Article 226 of
the Constitution of India. In a given case,
the High Court may refuse to invoke its
extraordinary powers if laxity on the part
of the applicant to assert his right has
allowed the cause of action to drift away
and attempts are made subsequently to
rekindle the lapsed cause of action.

 10. The discretion to be exercised
would be with care and caution. If the
delay which has occasioned in approaching
the writ court is explained which would
appeal to the conscience of the court, in
such circumstances it cannot be gainsaid
by the contesting party that for all times to
come the delay is not to be condoned.
There may be myriad circumstances which
gives
rise
to
the
invoking
of
the
extraordinary
jurisdiction
and
it
all
depends on facts and circumstances of each
case, same cannot be described in a
straight jacket formula with mathematical
precision. The ultimate discretion to be
exercised by the writ court depends upon
the facts that it has to travel or the terrain
in which the facts have travelled.

 11. For filing of a writ petition,
there is no doubt that no fixed period of
limitation is prescribed. However, when the
extraordinary jurisdiction of the writ court
is invoked, it has to be seen as to whether
within a reasonable time same has been
invoked and even submitting of memorials
would not revive the dead cause of action
or resurrect the cause of action which has
had a natural death. In such circumstances
on the ground of delay and latches alone,
the appeal ought to be dismissed or the
applicant ought to be non-suited. If it is
found that the writ petitioner is guilty of
delay and latches, the High Court ought to
dismiss the petition on that sole ground
itself, in as much as the writ courts are not
to indulge in permitting such indolent
litigant to take advantage of his own
wrong. It is true that there cannot be any
waiver of fundamental right but while
exercising discretionary jurisdiction under
Article 226, the High Court will have to
necessarily take into consideration the
delay and latches on the part of the
applicant in approaching a writ court."

19. Therefore, the law is well
settled that a claim for arrears of salary for
a period earlier than three years, cannot be
entertained by the High Court and the Writ
Petition filed in the year 2024 for claiming
payment of arrears of salary for the period
June, 2006 to 30.06.2009 cannot be
entertained.

20. Further, the mere fact that the
petitioner had filed Writ A No. 227 of 2023
which was disposed off by means of an
order
dated
15.02.2023,
giving
the
petitioner liberty to file a representation
ventilating his grievances, the submission
of the representation and rejection thereof
will not revive the more than 15 years old
stale cause of action of the petitioner.

21. In the case of State of
Uttaranchal and another Vs. Sri Shiv
Charan Singh Bhandari and others:
7 All. Sanjay Sharma Vs. State of U.P. & Ors.
133
(2013) 12 SCC 179 the Hon'ble Supreme
Court held that "it is clear as crystal that
even if the court or tribunal directs for
consideration of representations relating to
a stale claim or dead grievance it does not
give rise to a fresh cause of action. The
dead cause of action cannot rise like a
phoenix. Similarly, a mere submission of
representation to the competent authority
does not arrest time."

22. The aforesaid decision has
been relied upon by the Hon'ble Supreme
Court in State of West Bengal Vs.
Debabrata Tiwari: 2023 SCC OnLine SC
219, where after submitting an application
in the year 2005-06 the petitioners did
nothing further to pursue the matter for a
period of ten years. The Hon'ble Supreme
Court held that such prolonged delay in
approaching the High Court may be
regarded as a waiver of a remedy and such
a delay would disentitle the writ petitioners
to the discretionary relief under Article 226
of the Constitution of India.

23. In view of the aforesaid
discussion, the Writ Petition filed in the
year 2024 claiming payment of difference
in salary for the period June 2006 to 2009,
i.e., that is after expiry of more than 15
years, suffers from latches and the same is
dismissed on this ground alone.
----------
(2024) 7 ILRA 133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 18272 of 2021

Sanjay Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
Sri Abhishek Srivastava, Sri Brajesh Pratap
Singh, C.S.C.

Service
Law-Petitioner
dismissed
from
service-except for oral examination no oral
enquiry was held-no departmental witness
was examined-preliminary enquiry report not
proved-St.ment before the committee that
had held preliminary enquiry report was
against procedure prescribed for holding
major rnquiry-aggrieved-document required to
be proved-is to be proved either by person
who have answered it or by one who is
witness while the document being prepared
or examined or executed-any procedure if
not followed in getting a document provedfindings based on such report cannot be
relied-if law requires that something be
done in a particular manner, it must be
done that manner , and in no manner at allimpugned order bad in law-departmental
enquiry was not properly held-remitted for
fresh enquiry.

W.P. allowed. (E-9)

List of Cases cited:

1. St. of Tamil Nadu Vs Pramod Kumar, IPS &
anr. (2018) 17 SCC 677

2. Managing Director ECIL Hyderabad etc. Vs B.
Karunakar etc. AIR 1994 SC 1074

3. Uttar Pradesh & ors. Vs Saroj Kumar Sinha
(2010)2 SCC 772

4. M/s Tata Chemicals Ltd. Vs Commissioner of
Customs (Preventive) Jamnagar (2015) 11 SCC
628 and 2022 8 SCC 713

5. Mahesh Narain Gupta Vs St. of U.P. & ors.
2011 (2) ILR 570

6. St. of U.P. & ors. Vs Kishori Lal & anr., 2018
(9) 397 (DB) (LB)