# Brahm Prakash v. State of U.P. and others

- **Citation:** (2006) 2 ILRA 655
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-28
- **Case number:** Civil Misc. Writ Petition No. 7520 of 2006
- **Bench:** V.M. Sahai, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brahm-prakash-v-state-of-u-p-and-others-40631
- **Pages:** 22

## Headnote

656 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Constitution of India, Art. 226 Writ
Petition-delay in writ petition-petitioners
are
junior
engineer
or
the
Asstt.
Engineers retired between 30.4.04 to
31.3.05, petitions filed between 29.7.05
to 26.2.06-Apex court in Harwindra
Kumar's case granted relief of full salarywho were not permitted by Jal Nigam
after
58
years-the
relief
claimedotherwise admissible-not barred by any
statute or limitation-denial to similar
relief-not serve any cause of justice
rather whittle down law of land declared
by the Apex Court.

Held: Para 41

It is no doubt true that petitioners have
woke up when they got impetus from the
some decisions of this court in the month
of May 2005, but merely on that count
alone it would not be just to reject their
writ petitions when the relief claimed
therein
is
otherwise
admissible
as
discussed herein before and not barred
by any statute or law of limitations or
when they did not waive and acquiesce
their right by the time they approached
this Court, or in case of grant of relief
which has been earlier granted by this
Court and finally by Hon'ble Apex Court,
would
ultimately
upset
the
administration of affairs of Nigam or
there
exist
similar
other
situations
justifying refusal of such relief, the
denial to grant similar relief to the
petitioners in our mind would not serve
any cause of justice rather defeat it and
would also whittle down law of land
declared by Hon'ble Apex Court in
Harwindra
Kumar's
case
and
be
subversive to the judicial discipline.
Case law discussed:
(1901) PC-259, 1901 AC-495 (502, AIR 1990
SC-1782, AIR 2002 SC-834, AIR 1989 SC-674,
AIR 1997 SC-2366, 1996 (6) SCC-267, 1990
(3) SCC-682, AIR 1989 SC-38, 1955 AER-708,
1985 (3) SCR-26, AIR 1985 SC-1293, AIR 1988
SC-1531, 2005 E.S.C.-2600, J.T. 2005 (10) SC32, 2002 UPLBEC (2) 1511, AIR 1991 SC-471,
AIR 1991 SC-1676, AIR 1986 SC-589, AIR
1981 SC-271, AIR 1967 SC-1643, AIR 1986
SC-180, AIR 1959 SC-149, 1955 (1) SCR-613,
AIR 1994 SC-2608, AIR 1974 SC-1631, AIR
1974 SC-1, AIR 1968 SC-349, AIR 1967 SC839, J.T. 2005 (10) SC-32, AIR 1962 SC-36,
AIR 1974 SC-2177, AIR 1925 Cal. 1107, AIR
1952 Mysore-117, AIR 1950 Nag.-22, 1988
(Supp.) SCC-55, 1920 (28) CLR-305, 1867 (2)
HL-43, AIR 1979 SC-621, 1969 (1) SCR-808,
1874 (5) PC-221, AIR 1995 SC-1991, W.P. No.
5242/06
decided
on
21.1.06,
W.P.No.
57044/05 decided on 19.1.2006, J.T. 2005
(10) SC-32

(B) U.P. Jal Nigam Engineers (Public
Health Branch) Service Regulations 1978
Reg. 31 read with U.P. Fundamental
(Amendment) Rules 2002-Rule 56 (a)-
Retirement age-Junior Engineers as well
as the Asstt. Engineers entitled to work
up to the age of 60 years-whether are
such employees who never allowed to
work after 58 years entitled for arrear of
salary and other consequential benefit
without working? Held-'yes' as per law
laid down by Apex Court in Harwindra
Kumar's Case.

Held: Para 12

Thus in view of the afores

## Text

_Characters 0–39,895 of 74,465. This is a partial read: ask again with offset=39895 for what follows._

2 All] Brahm Prakash V. State of U.P. and others
655
dated 28.1.1998. This view of mine finds
support
from
the
Division
Bench
judgement of this Court in writ petition
No.31466 of 2003 Naseem Ahmed
versus State of U.P & others decided on
28.10.2005. The Division Bench of this
Court
relying
on
two
apex
court
judgements have laid down-

"From the aforesaid decisions of the
apex court, it is clear that if any amount
has been paid to the petitioner by the
respondents
and
there
was
no
misrepresentation made by the petitioner
then the amount already paid could not be
recovered. There is no material on the
record
to
establish
that
any
misrepresentation was made by the
petitioner. The payment of arrears of
salary has been made by the Assistant
Soil Survey Officer on his own after
fixing the pay of the petitioner. We are of
the opinion that in view of the law laid
down by the apex court the respondents
could not recover the amount of arrears of
salary already paid to the petitioner on
1.2.2003 in pursuance of the order dated
9.12.2002, therefore, the impugned order
dated 28.4.2003 and 18.6.2003 cannot be
maintained."

9. With regard to the maximum
ceiling as provided by the government
order dated 26.8.1999, a recent judgement
of this Court has taken the view that
putting of maximum ceiling of payment
of salary to the work charge employee is
arbitrary. The said view has been taken by
this Court in writ petition No.7201 of
2004 (s/s) Yogesh Prasad and others
versus State of U.P & others decided on
6.5.2005. However, the learned counsel
for the respondents has fairly conceded
that in the present case, there is no dispute
regarding the ceiling as prescribed by the
government order dated 26.8.1999.

10. It is further to be noted that
while reducing the fixation made on
28.1.1998 petitioners were never put to
any notice or opportunity. The order for
reduction of their fixation as ex parte
made. The Apex Court in Bhagwan
Shukla & others versus Union of India
1994 SC AIR 2480 has held that
reduction of salary with retrospective
effect cannot be made without giving any
opportunity to the employee.

11. In view of the foregoing
discussion, the petitioners have made out
a case for grant of relief. The order dated
20.9.2001 annexure-8 to the writ petition
is quashed. The respondents are directed
not to recover any amount already paid to
the petitioners in pursuance of the fixation
dated 28.1.1998. The parties shall bear
their own cost.
 Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2006

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 7520 of 2006

Brahm Prakash

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Akhtar Ali

Counsel for the Respondents:
Sri Q.R. Siddiqui
C.S.C.
656 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Constitution of India, Art. 226 Writ
Petition-delay in writ petition-petitioners
are
junior
engineer
or
the
Asstt.
Engineers retired between 30.4.04 to
31.3.05, petitions filed between 29.7.05
to 26.2.06-Apex court in Harwindra
Kumar's case granted relief of full salarywho were not permitted by Jal Nigam
after
58
years-the
relief
claimedotherwise admissible-not barred by any
statute or limitation-denial to similar
relief-not serve any cause of justice
rather whittle down law of land declared
by the Apex Court.

Held: Para 41

It is no doubt true that petitioners have
woke up when they got impetus from the
some decisions of this court in the month
of May 2005, but merely on that count
alone it would not be just to reject their
writ petitions when the relief claimed
therein
is
otherwise
admissible
as
discussed herein before and not barred
by any statute or law of limitations or
when they did not waive and acquiesce
their right by the time they approached
this Court, or in case of grant of relief
which has been earlier granted by this
Court and finally by Hon'ble Apex Court,
would
ultimately
upset
the
administration of affairs of Nigam or
there
exist
similar
other
situations
justifying refusal of such relief, the
denial to grant similar relief to the
petitioners in our mind would not serve
any cause of justice rather defeat it and
would also whittle down law of land
declared by Hon'ble Apex Court in
Harwindra
Kumar's
case
and
be
subversive to the judicial discipline.
Case law discussed:
(1901) PC-259, 1901 AC-495 (502, AIR 1990
SC-1782, AIR 2002 SC-834, AIR 1989 SC-674,
AIR 1997 SC-2366, 1996 (6) SCC-267, 1990
(3) SCC-682, AIR 1989 SC-38, 1955 AER-708,
1985 (3) SCR-26, AIR 1985 SC-1293, AIR 1988
SC-1531, 2005 E.S.C.-2600, J.T. 2005 (10) SC32, 2002 UPLBEC (2) 1511, AIR 1991 SC-471,
AIR 1991 SC-1676, AIR 1986 SC-589, AIR
1981 SC-271, AIR 1967 SC-1643, AIR 1986
SC-180, AIR 1959 SC-149, 1955 (1) SCR-613,
AIR 1994 SC-2608, AIR 1974 SC-1631, AIR
1974 SC-1, AIR 1968 SC-349, AIR 1967 SC839, J.T. 2005 (10) SC-32, AIR 1962 SC-36,
AIR 1974 SC-2177, AIR 1925 Cal. 1107, AIR
1952 Mysore-117, AIR 1950 Nag.-22, 1988
(Supp.) SCC-55, 1920 (28) CLR-305, 1867 (2)
HL-43, AIR 1979 SC-621, 1969 (1) SCR-808,
1874 (5) PC-221, AIR 1995 SC-1991, W.P. No.
5242/06
decided
on
21.1.06,
W.P.No.
57044/05 decided on 19.1.2006, J.T. 2005
(10) SC-32

(B) U.P. Jal Nigam Engineers (Public
Health Branch) Service Regulations 1978
Reg. 31 read with U.P. Fundamental
(Amendment) Rules 2002-Rule 56 (a)-
Retirement age-Junior Engineers as well
as the Asstt. Engineers entitled to work
up to the age of 60 years-whether are
such employees who never allowed to
work after 58 years entitled for arrear of
salary and other consequential benefit
without working? Held-'yes' as per law
laid down by Apex Court in Harwindra
Kumar's Case.

Held: Para 12

Thus in view of the aforesaid discussion
it is clear that the question in issue and
controversy is covered by law laid down
by the Hon'ble Apex Court in Harvindra
Kumar's case (supra) has been followed
and applied by a Division Bench of this
Court in Bihangesh Nandan Saran and
others
case
(supra).
The
aforesaid
decisions are also binding upon this
court, therefore, we are in complete
agreement with the view taken herein
before in the aforesaid cases on the
question in issue, the same is answered
accordingly.

(Delivered by Hon'ble V.M.Sahai, J.)

The questions which arise for our
consideration in these batch of cases are
as to whether amendment made in Rule
56 (a) of Uttar Pradesh Fundamental
Rules
(in
short
''the
Rules')
by
Notification
dated
June
27,
2002
2 All] Brahm Prakash V. State of U.P. and others
657
enhancing age of superannuation of
government servants from 58 years to 60
years
would
be
applicable
to
the
employees of Uttar Pradesh Jal Nigam
(hereinafter referred to as ''the Nigam').
And as to whether the petitioners are
entitled for the same and/or similar relief
which is granted in Harwindra Kumar
Vs. Chief Engineer Karmic and others
J.T. 2005(10) S.C. 32 or their conduct in
approaching the court at belated stage
disentitled them for such relief and their
writ petitions are liable to be dismissed on
the ground of delay and latches?

2. The petitioners of these batch of
writ petitions while working on the posts
of
Assistant
Engineers/Executive
Engineers in the Nigam have been made
to retire from service on attaining 58
years of their age of superannuation.
Since identical question in controversy
based on similar facts are involved in this
batch of writ petitions, therefore, these
writ petitions are taken up together for
hearing and disposal.

3. The brief facts having material
bearing with the question in controversy
involved in the case are that the
petitioners were initially employed in the
Local Self Government, Engineering
Department of Government of Uttar
Pradesh. In the year 1975, the State
Legislature enacted an Act, viz., Uttar
Pradesh Water Supply & Sewerage Act,
1975 (hereinafter referred to as ''the Act'),
under Section 3 whereof, the State
Government was empowered to issue
notification to constitute a corporation by
the name of the Uttar Pradesh Jal Nigam
pursuant to which a notification was
issued establishing the same with effect
from 18th June, 1975. From the date of
the establishment of the Nigam, which is
the appointed date as enumerated in
Section 31 of the Act, all properties and
assets which immediately before the
appointed date were vested in the State
Government for the purposes of Local
Self Government Engineering Department
were vested in and stood transferred to the
Nigam and all rights, liabilities and
obligations of the state Government
pertaining to the said Department became
the rights, liabilities and obligations of the
Nigam. Under Section 37 of the Act,
every person who was employed in the
Local
Self
Government
Engineering
Department of the State of Uttar Pradesh
shall on and from the appointed date, i.e.,
18th June, 1975 would become employee
of the Nigam and shall hold his office or
service therein by the same tenure, at the
same remuneration and upon same other
terms and conditions and with the same
rights and privileges as to pension,
gratuity and other matters as he would
have held the same on the appointed date
if this Act had not come into force and
shall continue to do so until his
remuneration
or
other
terms
and
conditions of service are revised or altered
by the Nigam under or in pursuance of
any law or in accordance with any
provision which for the time being
governed his service.

4. Before the appointed date i.e. 18th
June, 1975, the age of superannuation of
these employees under Rule 56(a) of the
rules was 58 years which could be
extended in exceptional circumstances up
to the age of 60 years. Thereafter, the
State Government issued order to the
Nigam under its letter dated October 31,
1975 wherein it was clearly stated that in
accordance with Section 37 of the Act the
service conditions of such employees of
the Nigam would continue to remain the
658 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
same so long the same are not altered by
the Nigam in accordance with law.
Thereupon, Nigam took a decision on 4th
April, 1977 in conformity with the
provisions of Section 37 of the Act
wherein it was specifically mentioned that
the rights and responsibilities as were
enjoyed by the officers of the then Local
Self Government Engineering Department
under the Financial Hand Book, PWD
Manuals, Manual of Government Orders,
Civil Services Regulations, Government
Conduct Rules and other Manuals of
Government Orders that have been passed
or shall be passed by the Government
from time to time shall be deemed to be
applicable to the officers of the Nigam
provided any other order in this regard is
not passed by the Nigam.

5. Section 97 (2) (c) confers power
upon the Nigam to make regulations with
the previous approval of the State
Government on matters, inter alia, the
salaries
and
allowances
and
other
conditions of service of employees of the
Nigam. In exercise of the aforesaid
powers under Section 97 of the Act,
regulations were framed by the Nigam on
1st September, 1978 as Uttar Pradesh Jal
Nigam Engineers (Public Health Branch)
Service Regulations, 1978 (hereinafter
referred to as the Regulations) which
came into force with immediate effect and
Regulation 31 thereof laid down that the
pay,
allowances,
pension,
leave,
imposition of penalty and other terms and
conditions of service of the employees of
the Nigam shall be governed by such
rules, regulations and orders which are
equally
applicable
to
other
serving
government servants functioning in the
State. On 17th July, 1985, the State
Government issued a general order under
its Memo No. 665/44-1/85 directing
thereunder
that
the
public
sector
undertakings should not give the benefit
of extension of age as provided to the
government servants under Rule 56 (a) of
the Rules without the permission of the
State Government.

6. On 28th November, 2001, the
State Government issued a notification
notifying thereunder approval of the
Governor for increasing the age of
superannuation of government servants
from 58 years to 60 years in public
interest and steps were required to be
taken for making suitable amendment in
Rule 56 (a) of the Rules, pursuant to
which rules were amended by Uttar
Pradesh
Fundamental
(Amendment)
Rules, 2002 by notification dated 27th
June, 2002 which came into force with
effect from 28th November, 2001 and
thereunder the age of retirement of
government servants was enhanced from
58 years to 60 years. In the meantime,
after the issuance of notification dated
28th November, 2001, on behalf of
Nigam a letter was written to the State
Government on 31st December, 2001
making inquiry thereunder as to whether
enhancement in the age of superannuation
from 58 years to 60 years would be
applicable to the employees of Nigam and
in reply thereto, on 22nd January, 2002,
Special Secretary to the Government in
the Department of Local Self Government
communicated that the employees of the
Nigam
shall
not
be
entitled
to
enhancement of superannuation age from
58 years to 60 years as the same would be
applicable
only
to
the
government
servants. On receipt of the said order, the
Nigam resolved on 11th July, 2002 that
enhancement in the age of superannuation
from 58 years to 60 years would not be
applicable to the employees of the Nigam.
2 All] Brahm Prakash V. State of U.P. and others
659
Thereupon orders were issued to the
petitioners in the writ petitions to the
effect that they would retire upon
completing the age of 58 years.

7. We have heard learned counsel
for the petitioners and Sri Q.H. Siddiqui
appearing for the Nigam as well as
learned Standing Counsel for the State
Government and also perused the records.

8. To appreciate the question in
controversy it would be useful to refer the
date of notice asking the petitioners to
retire from service on attaining their age
of 58 years on the date stipulated in the
notice and respective dates of filing of
writ petitions by them.

S. No.
Name
Date of Notice of
retirement
Date of retirement
Date of filing of
writ petition
1.
Brahm
Prakash
8.12. 04
31.1.05
2.2.06
2.
Ram
Ratan
Agrawal
31.8.04
31.8.04
9.8.05
3.
Yogendr
a
Nath
Shukla
29.5.05
31.12.04
1.8.05
4.
Prem
Narain
Pandey
8.12.04
31.1.05
8.8.05
5.
G.K.
Varshne
y
25.9.04
31.12.04
9.8.05
6.
P.K.
Tyagi
28.7.04
30.9.04
16.9.05
7.
Krishna
Gopal
13.8.04
31.10.04
16.9.05
8.
A.K.
Gupta
10.2.05
31.3.05
22.7.05
9.
Yatindra
Prakash
Singhal
18.3.04
30.4.04
29.7.05

9. It is necessary to point out that it
is not in dispute that the petitioners were
initially employed in the Local Self
Government, Engineering Department of
the
Government
of
U.P..
On
establishment of Nigam their services
stood transferred from the aforesaid
department of Government to the Nigam
by virtue of section 37 of the Act from the
appointed date, consequently they became
employee of the Nigam and since then
they were continuously working on their
respectives posts of Assistant Engineers
and/or Executive Engineers. It is also not
in dispute that the petitioners were
working on their respective posts on the
date of commencement of the amended
Fundamental Rules 56 (a), which came
into force w.e.f. 28th November 2001 but
they were retired from service after the
aforesaid cut of date on attaining 58 years
of their age, without permitting them to
continue in service till attaining 60 years
age of superannuation.

10. Now so far as first question is
concerned it is necessary to point out that
similar controversy has been dealt with by
the Hon'ble Apex Court in Harwindra
Kumar Vs. Chief Engineer, Karmik &
others, JT 2005 (10) SC 32, wherein
after discussing the relevant provisions of
statute applicable to the facts and
circumstances of the case Hon'ble Apex
Court in Para 11 and 12 of the decision
held as under:-

"11. For the foregoing reasons, we
are of the view that so long 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
660 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
with the previous approval of the State
Government to make suitable amendment
in Regulation 31 and alter 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.
12. 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
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 upto 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 upto 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."

11. Relying upon the aforesaid
decision of Hon'ble Apex Court a
Division Bench of this Court in para 12,
13 and 14 of the decision rendered in
batch of the writ petitions namely Civil
Misc.Writ Petition No. 57044 of 2005,
Bihangesh Nandan Sharan and others
Vs. State of U.P. and others along with
the connected writ petitions decided on
9.1.2006 has held as under:-

"12. Thus in given facts and
circumstances of the case, we are of the
considered opinion that the law laid down
by the Hon'ble Apex Court is fully
applicable and squarely covers the case
of petitioners, therefore, we have no
hesitation to hold that the amendment
made in Rule 56 (a) of Fundamental
Rules referred herein before shall equally
apply to the employees of Nigam covered
by aforesaid Regulations by virtue of
Regulation 31, and the petitioners would
be entitled to be superannuated on
attaining their age of 60 years. The
decision of Nigam dated 11.7.2002
resolving not to apply 60 years enhanced
age of superannuation to the petitioners
and pursuant impugned order passed by
Nigam retiring the petitioners earlier to
attaining the age of 60 years i.e. on
attaining the age of 58 years only are not
sustainable being contrary to law and
decision rendered by Hon'ble Apex Court.
Accordingly, the decision of Nigam dated
11.7.2002 and orders passed by Nigam
retiring the petitioners from service on
attaining their age 58 years are hereby
quashed.
13. However, it is made clear that
since we have interpreted the provisions
of Regulation 31 of Regulations in context
of provisions of Act and in connection of
applicability of amendment made in Rule56 (a) of U.P. Fundamental Rules by
Notification dated 27.6.2002, which have
retrospective operation with effect from
28th November 2001, therefore, the
observations made in our decision should
be understood in context of only those
provisions meaning thereby it shall apply
to only those employees of the Nigam who
are governed by Regulations referred
herein before and were in service of the
Nigam till the date of commencement of
amended
provisions
of
aforesaid
Fundamental
Rules
and
have
been
superannuated on or after 28th November
2 All] Brahm Prakash V. State of U.P. and others
661
2001 but in view of the proviso second of
amended Rule-56(a) if a Government
servant who has attained the age of 58
years on or before the first day of
November 2001 and is on extension in
service shall be retired from service on
expiry of his extended period of service.
Thus he would not be entitled to take
benefits of amended fundamental Rules.
14. In the result, the petitioners are
entitled to be continued in service on their
respective posts till attaining 60 years age
of their superannuation. In case the
petitioners were permitted to continue in
service after attaining their age of 58
years at the strength of any interim order
passed by this Court and they have also
been paid their salary, the respondents
are directed to continue them in service
till attaining their age of 60 years and pay
their salary admissible to their respective
posts by treating their age of retirement
60 years. If any of the petitioner has not
been permitted to continue in service in
absence of any interim order and has not
been paid his salary without his fault, the
Nigam is directed to reinstate him on his
post for remaining period till attaining his
age of 60 years and pay his salary
alongwith arrears of remaining period
within a period of three months from the
date of production of certified copy of the
order passed by this Court before the
Nigam. The Nigam is further directed to
finalize post retiral benefits of the
petitioners by treating their age of
retirement 60 years. With the aforesaid
directions, the writ petition succeeds and
allowed."

12. Thus in view of the aforesaid
discussion it is clear that the question in
issue and controversy is covered by law
laid down by the Hon'ble Apex Court in
Harvindra Kumar's case (supra) has been
followed and applied by a Division Bench
of this Court in Bihangesh Nandan Saran
and others case (supra). The aforesaid
decisions are also binding upon this court,
therefore, we are in complete agreement
with the view taken herein before in the
aforesaid cases on the question in issue,
the same is answered accordingly.

13. Now so far as next question is
concerned, the learned counsel for Nigam
has vehemently argued that since the
petitioners have approached this court
after expiry of much time from their
respective dates of retirement as such they
are not entitled for similar relief as
granted in Harvindra Kumar's case and
other cases referred herein before as their
blameworthy conduct disentitled them to
seek such relief. Thus he urged that the
petitioners
are
not
entitled
for
discretionary and equitable relief under
Article 226 of the Constitution of India
and the petitions are liable to be dismissed
on the ground of delay and latches alone.
In support of his contention learned
counsel for Nigam has placed strong
reliance upon a decision rendered by a
Division Bench of this court in Writ
Petition No. 5242 of 2006 Radha
Krishna Gupta Vs. State of U.P. &
others decided on 27.1.2006 wherein this
court has refused to entertain the petition
and dismissed the same on the ground of
unexplained undue delay and latches
alone without entering into merits of the
writ petition The petitioner of the
aforesaid case was Assistant Engineer of
the Nigam and has been retired from
service on attaining 58 years of his age on
30.1.2004. He approached this court after
lapse of almost about two years and had
claimed two years salary. Thus before
dealing with the case in detail we would
662 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
like to deal with legal position in this
regard.

14. The issue in question is not resintegra rather has received consideration
of Hon'ble Apex court on several
occasions. In State of Maharashtra Vs.
Digamber A.I.R. 1995 S.C. 1991, the
Hon'ble Apex Court has dealt with the
issue at length by taking note of earlier
decisions of Hon'ble Apex Court and
Court in England and in para 12,18,19
and 20 of the decision Hon'ble Apex
Court has held as under:
"12. . . .. . . Where the relief sought
under Article 226 of the Constitution by a
person against the welfare State is
founded on its alleged illegal or wrongful
executive action, the need to explain
latches or undue delay on his part to
obtain such relief, should, if anything, be
more stringent than in other cases, for the
reason that the State due to latches or
undue delay on the part of the person
seeking relief, may not be able to show
that the executive action complained of
was legal or correct for want of records
pertaining to the action or for the officers
who were responsible for such action, not
being available later on. Further, where
granting of relief is claimed against the
State on alleged, unwarranted executive
action, is bound to result in loss to the
public exchequer of the State or in
damage to other public interest, the High
Court before granting such relief is
required to satisfy itself that the delay or
latches on the part of a citizen or any
other person in approaching for relief
under Article 226 of the Constitution on
the alleged violation of his legal right,
was wholly justified in the facts and
circumstances, instead of ignoring the
same or leniently considering it. Thus, in
our view, persons seeking relief against
the State under Article 226 of the
Constitution,
be
they
citizens
or
otherwise, cannot get discretionary relief
obtainable thereunder unless they fully
satisfy the High Court that the facts and
circumstances of the case clearly justified
the latches or undue delay on their part in
approaching the Court for grant of such
discretionary relief. Therefore, where a
High Court grants relief to a citizen or any
other person under Article 226 of the
Constitution against any person including
the State without considering his blameworthy conduct, such as latches or undue
delay, acquiescence or waiver, the relief
so granted becomes unsustainable even if
the relief was granted in respect of alleged
deprivation of his legal right by the State.
18. Latches or undue delay, the
blame-worthy conduct of a person in
approaching a Court of Equity in England
for obtaining discretionary relief which
disentitled him for grant of such relief
was explained succinctly by Sir Barnes
Peacock, long ago, in Lindsay Petroleum
Co. Vs. Prosper Armstrong (1874) 5 PC
221), thus:
"Now the doctrine of latches 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 or
2 All] Brahm Prakash V. State of U.P. and others
663
limitations, 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."
19. Whether the above doctrine of
latches which disentitled grant of relief to
a party by Equity Court of England, could
disentitle the grant of relief to a person by
the High Court in exercise of its power
under Article 226 of the Constitution,
when came up for consideration before a
Constitution Bench of this Court in Moon
Mills Ltd. Vs. M.R. Meher, President
Industrial Court, Bombay, (AIR 1967 SC
1450) it was regarded as a principle that
disentitled a party for grant of relief from
a
High
Court
in
exercise
of
its
discretionary power under Article 226 of
the Constitution.
20. A three-Judge Bench of this
Court
in
Maharashtra
State
Raod
Transport Corporation Vs. Shri Balwant
Regular Motor Service, Amravati, (1969
(1) SCR 808), reiterated the said
principle of latches or undue delay as that
which applied in, exercise of power by the
High Court under Article 226 of the
Constitution.

15. Thus from the aforesaid settled
legal position, it is clear that before
granting discretionary relief under Article
226 of the Constitution it is necessary for
this court to examine as to whether the
conduct of petitioners on account of
latches or undue delay, acquiescence or
waiver, disentitles him for such reliefs.
For that purpose it is necessary to
examine that as to whether 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 whether
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 afterward to be asserted.
While examining the matter it should also
be kept in mind that 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 or limitations, waiver
and acquiescence 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 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. Where the relief is
claimed
against
the
unwarranted
executive action of the State, the need to
explain the delay and latches are more
stringent than in other cases for the simple
reason that state due to latches or undue
delay on the part of person seeking relief
may not be able to show that executive
action complained of was legal or correct
for want of the record pertaining to the
action or for the officers who were
responsible for such action not being
available later on. Further where the relief
is claimed against the state on alleged
unwarranted executive action is bound to
result loss of public exchequer of state or
in damage to other public interest, this
court before granting such relief is
required to satisfy itself that the delay or
latches on the part of citizen or any other
person in approaching for relief under
Article 226 of the Constitution on alleged
664 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
violation of his legal right was wholly
justified in facts and circumstances of the
case. Therefore, before examining the
case within aforesaid parameters, it is
necessary to consider the true content and
meaning of expression, ''waiver' and
''doctrine of acquiescence'.

16. In this connection a reference
can be made to a decision of Hon'ble
Apex
Court
rendered
in
Motilal
Padampat Sugar Mills Co. Ltd. Vs. The
State of U.P. and others, AIR 1979 S.C.
621, wherein in para 6 of the decision
Hon'ble Apex Court has explained the
meaning of the expression ''waiver' known
in the legal parlance as under:

"6. . . . . Waiver means abandonment
of a right and it may be either express or
implied from conduct, but its basic
requirement is that it must be "an
intentional act with knowledge" per Lord
Chelmsford, L.C. in Earl of Darnley Vs.
London, Chatham and Dover Rly. Co.,
(1867) 2 HL 43 at P. 57. There can be no
waiver unless the person who is said to
have waived is fully informed as to his
right and with full knowledge of such
right, he intentionally abandons it. It is
pointed out in Halsbury's Laws of
England (4th ed.) Vol . 16 in para 1472
at p. 994 that for a "waiver to be effectual
it is essential that the person granting it
should be fully informed as to his rights"
and Isaacs, J. delivering the judgment of
the High Court of Australia in Craine Vs.
Colonial Mutual Fire Insurance Co. Ltd.
(1920) 28 CLR 305 has also emphasised
that waiver "must be with knowledge, an
essential supported by many authorities."

The Hon'ble Apex Court has further
observed as under;

Moreover, it must be remembered
that there is no presumption that every
person knows the law. It is often said that
every one is presumed to know the law,
but that is not a correct statement; there
is no such maxim known to the law. Over
a hundred and thirty years ago, Maule J.,
pointed out in Martindale Vs. Falkner,
(1846) 2 Constitution Bench 706 "There
is no presumption in this country that
every person knows the law; it would be
contrary to common sense and reason if it
were so". Scrutton, L.J., also once said:
"It is impossible to know all the statutory
law, and not very possible to know all the
common law." But it was Lord Atkin who,
as in so many other spheres, put the point
in its proper context when he said in
Evans V. Bartlam, 1937 Authorised
Controller 473"....the fact is that there is
not and never has been a presumption
that every one knows the law. There is the
rule that ignorance of the law does not
excuse, a maxim of very different scope
and application. It is, therefore, not
possible to presume, in the absence of any
material placed before the Court, that the
appellant had full knowledge of its right
to exemption so as to warrant an
inference that the appellant waived such
right by addressing the letter dated 25th
June, 1970. We accordingly reject the
plea of waiver raised on behalf of the
State Government."

17. In Municipal Corporation of
Greater Bombay Vs. Dr. Hakimwadi
Tenants' Association and others 1988
(Supp) S.C.C. 55 in para 14 of the
decision Hon'ble Apex Court observed as
under:

"14. . .. . In order to constitute
waiver, there must be voluntary and
intentional relinquishment of a right. The
2 All] Brahm Prakash V. State of U.P. and others
665
essence of a waiver is an estoppel and
where there is no estoppel, there is no
waiver. Estoppel and waiver are questions
of conduct and must necessarily be
determined on the facts of each case. . .. ."

18. Now coming to the meaning of
expression ''acquiescence' it is pointed out
that in para 1473 (page 994-995)
Halsbury's Laws of England Fourth
Edition Volume 16, the meaning and
import of the expression ''acquiescence'
has been given as under:

"1473. Estoppel and acquiescence.
The term "acquiescence" is used where a
person refrains from seeking redress
when there is brought to his notice a
violation of his rights of which he did not
know at the time, and in that sense
acquiescence is an element in latches.
Subject to this, a person whose rights
have
been
infringed
without
any
knowledge or assent on his part has
vested in him a right of action which, as a
general rule, cannot be divested without
accord and satisfaction or release under
seal.
The term is, however, properly used
where a person having a right, and seeing
another person about to commit or in the
course of committing an act infringing
upon that right, stands by in such a
manner as really to induce the person
committing the act, and who might
otherwise have abstained from it, to
believe that he assents to its being
committed; a person so standing by
cannot afterwards be heard to complain
of the Act. In that sense the doctrine of
acquiescence
may
be
defined
as
quiescence under such circumstances that
assent may be reasonably inferred from it,
and is no more than an instance of the
law of estoppel by words or conduct, the
principle of estoppel by representation
applying both at law and in equity,
although its application to acquiescence
is equitable". The estoppel rests upon the
circumstances that the person standing by
in effect makes a misrepresentation as to
a fact, namely, his own title' a mere
statement that he intends to do something,
for example to abandon his right, is not
enough. Furthermore, equitable estoppel
is not applied in favour of a volunteer."

19. In Govindsa Marotisa Vs.
Ismail and another A.I.R. 1950 Nag. 22
(Division Bench) while explaining the
meaning
of
the
acquiescence
Hidayatullah (J) (as he then was)
observed that acquiescence proper is
nothing more than absolute or positive
waiver. It amount to abandonment of
right. In Sidde Gowda Vs. Nadakala
Sidda Naika and others, A.I.R. 1952
Mysore
117,
it
was
held
that
acquiescence is founded on conduct with
knowledge of one's own legal right. In
Gobinda Ramanuj Das Mohanta Vs.
Ram Charan Das and another, A.I.R.
1925 Calcutta 1107, a Division Bench of
Calcutta High Court has held that estoppel
by acquiescence connotes that the person
estopped in effect has represented to the
person who is infringing his right that he
is not entitled to complain that his right is
being invaded and that the party relying
upon this representation has altered his
position to his detriment.

20. In K. Ramdas Shenoy Vs. The
Chief
Officers,
Town
Municipal
Council, Udipi and others, A.I.R. 1974
S.C. 2177, in para 30 of the decision
Hon'ble Apex Court has held that an
excess of statutory power cannot be
validated by acquiescence in or by the
666 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
operation of an estoppel. The Hon'ble
Apex Court observed as under:

"30. The High Court was not correct
in holding that though the impeached
resolution
sanctioning
plan
for
conversion of building into a cinema was
in violation of the Town Planning Scheme
yet it could not be disturbed because the
third respondent is likely to have spent
money. An excess of statutory power
cannot be validated by acquiescence in or
by the operation of an estoppel. The Court
declines to interfere for the assistance of
persons who seek its aid to relieve them
against express statutory provision. Lord
Selborne in Maddison Vs. Alderson,
(1883) 8 App Cas 467 said that courts of
equity would not permit the statute to be
made an instrument of fraud. The
impeached resolution of the Municipality
has no legal foundation. The High Court
was wrong in not quashing the resolution
on the surmise that money might have
been spent. Illegality is incurable."

21. Now further question arises for
consideration that what is legal nature of
right of petitioners, which was allegedly
invaded and is sought to be enforced in
these writ petitions? In this regard it is
necessary to point out that a Constitution
Bench of the Hon'ble Apex Court while
explaining the scope of phrase "matters
relating to employment" as enshrined
under Article 16(1) of the Constitution of
India in General Manager, Southern
Railway and another Vs. Rangachari
A.I.R. 1962 S.C. 36 in para 14 and 16 of
the decision has held as under:

"14. Article 16(1) reads thus:
"There
shall
be
equality
of
opportunity for all citizens in matters
relating to employment or appointment to
any office under the State".
If the words used in the Article are
wide in their import they must be liberally
construed in all their amplitude. Thus
construed it would be clear that matters
relating
to
employment
cannot
be
confined only to the initial matters prior
to the act of employment. The narrow
construction
would
confine
the
application of Art. 16(1) to the initial
employment and nothing else; but that
clearly is only one of the matters relating
to employment would inevitably be the
provision as to the salary and periodical
increments therein, terms as to leave, as
to gratuity, as to pension and as to the
age of superannuation. These are all
matters relating to employment and they
are, and must be, deemed to be included
in the expression "matters relating to
employment" in Art. 16(1). What Art.
16(1)
guarantees
is
equality
of
opportunity to all citizens in respect of all
the matters relating to employment
illustrated by us as well as to an
appointment to any office as explained by
us.

16.