Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of order : 8 August, 2023
+ W.P.(C) 7259/2018
SH. M. RAJMANNAR. ..... Petitioner
Through: Ms.Prabha Sharma, Advocate
versus
VICE-CHANCELLOR, IGNOU ..... Respondent
Through: Mr.Aly Mirza, Advocate
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The instant writ petition under Article 226 of the Constitution of India
has been filed on behalf of the petitioner seeking the following reliefs:-
“ i. ISSUE the WRIT OF MANDAMUS or any other
appropriate writ and/or order or direction to setaside/quash the
impugned office order dt.19.11.2017 passed by the respondent;
and
ii. ISSUE the WRIT OF MANDAMUS or any other
appropriate writ and/or order or direction against the
respondent for granting one advance incentive in favor of the
petitioner and other consequential benefits arising therefrom
w.e.f 01.01.2006 to the petitioner; and
iii. PASS any other and further order (s) which may be
deemed to be just, fit & proper in favor of the Petitioners in the
light of the facts & Circumstances of the case. ”
2. The brief facts leading to filing of the instant petition have been
recapitulated herein below:
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a) The petitioner had worked as a Producer, EPMC with the
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respondent No. 1 from 6 March 2001 till his placement in
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selection grade on 2 July 2007. The petitioner completed
his degree of M.Phil. while in service in the year 2004.
b) The Ministry of Human Resource Development issued a
Scheme in 2008 whereby, it sanctioned the grant of
advanced increment for completion of M.Phil. degree while
being in service. The said Scheme is titled as „Revision of
pay of teachers and equivalent cadres in universities and
colleges following the revision of pay scales of the Central
Government employees on the recommendations of the
Sixth Central Pay Commission applicable to teachers and
other equivalent cadres of Library and Physical Education in
all the Central Universities and Colleges.‟ (hereinafter
“Scheme, 2008”).
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c) On 12 November 2008, the respondent replied to the
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petitioner‟s representation dated 13 October 2008, stating
that there is no provision for grant of advanced increment
for completion of M.Phil. degree while being in service
under the Scheme of 5th Central Pay Commission
(hereinafter “CPC”).
d) Thereafter, the petitioner continued to make representations
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dated 26 July 2011, and 28 August 2015, which were
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rejected vide respondent‟s reply dated 26 June 2015, and
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31 October 2016, respectively.
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e) Another representation dated 23 November 2016, was also
made to the respondent for grant of one advance incentive
but the respondent rejected it vide impugned office
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order/reply dated 19 November 2017. Henceforth, the
petitioner being aggrieved by the impugned office
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order/reply dated 19 November 2017, filed the present writ
petition under Article 226 of the Constitution of India.
3. Learned Counsel appearing on behalf of the petitioner submitted that
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Clause (viii) of Para 7 of the Scheme dated 31 December 2008, qua
incentives for Ph.D./M.Phil. and for other higher qualification, lays down the
provisions regarding grant of one advance incentive on completing M.Phil.
degree while in service.
4. It is submitted that by virtue of Para 7 clause (viii), the petitioner, who
has acquired M. Phil. degree in 2004, while in service is eligible under the
Scheme, 2008. Moreover, the petitioner made several representations dated
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13 October 2008, 26 July 2011, and 28 August 2015, which were
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outrightly rejected vide a reply dated 12 November 2008, 26 June 2015,
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and 31 October 2016, respectively. Another representation dated 23
November 2016, was also made to the respondent for the grant of one
advance incentive but the respondent rejected it vide another impugned
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office order/reply dated 19 November 2017.
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5. It is submitted that the impugned office order is arbitrary as the
respondent has not rendered valid and legally justified reasons for rejecting
the petitioner‟s representations.
6. It is submitted that by misconstruing the said Scheme, 2008, the
respondent is making the qualified-unqualified and equal-unequal with their
counterparts working in same department by raising the differences in pay.
The Scheme, 2008 does not debar the lecturers acquiring M. Phil. degree
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while in service prior to 1 January 2006, for grant of one advance
increment.
7. It is further submitted that the petitioner is qualified for grant of one
advance incentive as per Clause (viii) of Para 7 of the Scheme, 2008, and
mere difference in the date of attaining the M.Phil. degree should not to be
treated as the intent behind the issuance of the Scheme, 2008, for grant of
advance incentive.
8. It is submitted that the petitioner could not file the present writ
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petition immediately after the impugned office order dated 19 November
2017, as he was going through a financial crisis in the family. Further, in the
month of April 2018, the file of petitioner along with the relevant documents
got misplaced by the counsel due to shifting of office. Thereafter, in the
month of May 2018, the petitioner‟s counsel got unwell and had to leave
Delhi due to certain urgency.
9. It is submitted that the said impugned order rejecting the
representation of the petitioner for grant of advanced increment is arbitrary
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in nature and is also against the principles of natural justice and equity.
Hence, the same is liable to be set aside.
10. Per contra , learned Counsel appearing on behalf of the respondent
vehemently opposed the submissions on behalf of the petitioner stating the
preliminary objection of maintainability on the account that the present
petition suffers from delay and laches.
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11. It is submitted that vide the order dated 12 November 2008, the
representation of the petitioner has already been rejected and the same was
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never challenged. The impugned order dated 19 November 2017, was
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passed only on the basis of the order dated 12 November 2008, which was
never challenged and hence, has attained finality. Therefore, the impugned
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order dated 19 November 2017, does not confer upon the petitioner any
fresh cause of action to institute the present petition. Hence, the petition is
liable to be dismissed at the outset.
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12. It is submitted that according to the order dated 12 November 2008,
no advance increment has been envisaged for completion of M.Phil. degree
in service and since the same remained unchallenged, it had attained finality.
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13. It is further submitted that the Scheme, 2008, is w.e.f, 1 January
2006, and therefore, no retrospectivity can be inferred in view of express
mandate qua the said cut-off date.
14. In view of the foregoing submissions, the learned counsel for the
respondent submitted that the instant petition be dismissed.
15. Heard learned counsel for the parties and perused the material on
record.
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16. To adjudicate upon the issue in the instant matter, it is imperative to
set out certain relevant facts. It is the case of the petitioner that he is entitled
for one advance increment as per Clause (viii) of Para 7 under the Scheme,
2008, since he has completed his M.Phil. degree in the year 2004, while
being in service. The said provision has been reproduced herein for
reference:
“ 7. Incentives for Ph.D./M.Phil. and other higher
quailification:
(viii) Teachers who acquire M.Phil, degree or a post graduate
degree in a professional course recognized by the relevant
Statutory Body/Council, while in service, shall be entitled to
one advance increment. If post graduate qualification in a
particular subject is not a mandatory requirement at the entry
level of recruitment, acquisition of such a qualification for in
service candidates shall also entitle them to one advance
increment. ”
17. It is observed on perusal of the petition that the petitioner has made
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several representations since 2008. The initial representation dated 13
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October 2008, of the petitioner was rejected vide order dated 12 November
2008, and admittedly the said order had not been challenged before any
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court of law. Hence, the order dated 13 October 2008, has attained finality.
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The petitioner made another representation on 23 November 2016, and the
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same was decided vide the impugned order dated 19 November 2017. The
relevant paragraph has been reproduced herein:
“ With reference to your request for granting an advance
increments on completion of M.Phil in 2004 while in service,
you are hereby informed that before 01.01.2006 there was no
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provision of advance increment for acquiring M.Phil. while in
service. Hence, your request cannot be acceded to. ”
18. It is noted that the respondent rejected the petitioner‟s representation
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dated 23 November 2016, on the ground that the as per Clause (i) of Para 9
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of the Scheme, 2008 the said Scheme is applicable w.e.f 1 January 2006.
The abovementioned Clause is reproduced herein:
“ 9. Date of implementation of revised pay and allowance and
payment of arrears:
(i) The revised Pay and revised rates of Dearness Allowance
under this Scheme shall be effective from 1.01.2006. The
revised rates of all other applicable allowances such as
House Rent Allowance, Transport Allowance, Children
Education Allowance etc. and the non-compounded
advance increments shall take effect from 1.09.2008. ”
19. At this juncture, it is important to note that though the petitioner has
raised the issue of the retrospective applicability of the said Scheme, the
respondent has outrightly opposed the submissions of the petitioner. The
respondent has argued that the instant petition suffers from gross delay and
laches which makes the petition liable to be dismissed solely on the ground
of non-maintainability. Therefore, this Court shall deal with the issue of
maintainability first.
20. At the first instance, it is observed that the petitioner has not
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challenged the first rejection office order dated 12 November 2008, in the
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instant petition. The impugned order dated 19 November 2017, is only a
reiteration of the denial and rejection to the petitioner‟s representation.
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21. The respondent rejected the petitioner‟s initial request for one advance
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increment vide office order dated 12 November 2008, i.e., more than 10
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years ago. The rejection order dated 12 November 2008, is still alive and
has attained finality since the same was never challenged by the petitioner
before any competent authority either in appeal or in writ jurisdiction.
22. It is a fundamental principle in the administration of justice that the
Courts will aid those who are vigilant and who do not sleep on their rights.
Basically, if the party who is seeking reliefs moves the plea after
considerable delay and is otherwise guilty of laches, the Courts in such
circumstances would refuse to exercise the writ jurisdiction in favour of that
party.
23. The above said principle that ascribes limitation on the exercise of
power of the High Court in the event of an unreasonable delay, can be
supported by the judgment of the Privy Council in Lindsay Petroleum Co. v.
Proper Armstrong Hurd, 1874 LR 5 PC 221 . It was held by the Court
therein, that the doctrine of laches in Courts of equity is not an arbitrary or a
technical doctrine. Where it would be practically unjust to give a remedy,
either because the party has by its conduct done something which might
fairly be regarded as neglect, in such cases, lapse of time and delay are most
material. The said principles of English Law have been accepted by the
Hon‟ble Supreme Court in the matter of Tilokchand Motichand v. H.B.
Munshi, (1969) 1 SCC 110 , Rabindranath Bose v. Union of India, (1970)
1 SCC 84 and further in Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14
SCC 295 .
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24. The Hon‟ble Supreme Court in the judgment of State of M.P. v.
Bhailal Bhai, 1964 SCC OnLine SC 10 , has discussed the scope regarding
delay and laches in a very peculiar way. It has been held by the Hon‟ble
Court that the maximum period defined to initiate a civil action before a
Civil Court to seek a relief may ordinarily be taken to be a reasonable
standard limitation period by which delay in seeking remedy under Article
226 of the Constitution of India, can be measured. The Court may consider
the delay unreasonable even if it is less than the period of limitation
prescribed for a civil action. However, in the event the delay is more than
the period prescribed, it will almost always be proper for the Court to hold
that it is unreasonable.
25. The abovementioned tenets of law are the bedrock of imparting
justice. The Hon‟ble Supreme Court in Shiv Dass v. Union of India, (2007)
9 SCC 274, on the aspect of delay and laches in seeking relief under a writ
jurisdiction has further reiterated the settled law, wherein, the Hon‟ble Court
observed as under:
“ 8. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4
SCC 566 : AIR 1987 SC 251] that the High Court in exercise of
its discretion does not ordinarily assist the tardy and the
indolent or the acquiescent and the lethargic. If there is
inordinate delay on the part of the petitioner and such delay is
not satisfactorily explained, the High Court may decline to
intervene and grant relief in exercise of its writ jurisdiction….. ”
The said observation has also been followed in the matter of Rushibhai
Jagdishbhai Pathak v. Bhavnagar Municipal Corpn., 2022 SCC OnLine
SC 641 .
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26. Further, the Hon‟ble Supreme Court in the judgment of Eastern
Coalfields Ltd. (Supra) has explicitly held that an application for leave of
judicial review should be made promptly. If the same is made on a belated
stage, it may be rejected. The relevant paragraph of the judgment is
reproduced herein:
“ 24. As to delay and laches on the part of the writ petitioner,
there is substance in the argument of learned counsel for the
appellant Company. It is well settled that under Article 226 of
the Constitution, the power of a High Court to issue an
appropriate writ, order or direction is discretionary. One of the
grounds to refuse relief by a writ court is that the petitioner is
guilty of delay and laches. It is imperative, where the petitioner
invokes extraordinary remedy under Article 226 of the
Constitution, that he should come to the court at the earliest
reasonably possible opportunity. Inordinate delay in making
the motion for a writ is indeed an adequate ground for refusing
to exercise discretion in favour of the applicant. ”
27. In the present petition, it has also been observed that the petitioner had
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made his initial representation on 13 October 2008, then on various other
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occasions and the last representation was made on 23 November 2016. In
this regard, this Court is of the view that merely by way of making repeated
representation, after the rejection of initial representation cannot be held to
be a satisfactory explanation of delay. The same has also been observed by
the Hon‟ble Supreme Court in the judgment of State of T.N. v.
Seshachalam, (2007) 10 SCC 137 and State of Orissa v. Pyarimohan
Samantaray, (1977) 3 SCC 396 . The Court in Seshachalam (Supra)
observed as under:
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“ 16. Some of the respondents might have filed representations
but filing of representations alone would not save the period of
limitation. Delay or laches is a relevant factor for a court of
law to determine the question as to whether the claim made by
an applicant deserves consideration. Delay and/or laches on
the part of a government servant may deprive him of the benefit
which had been given to others. Article 14 of the Constitution of
India would not, in a situation of that nature, be attracted as it
is well known that law leans in favour of those who are alert
and vigilant. Opinion of the High Court that GOMs No.126
dated 29-5-1998 gave a fresh lease of life having regard to the
legitimate expectation, in our opinion, is based on a wrong
premise. Legitimate expectation is a part of the principles of
natural justice. No fresh right can be created by invoking the
doctrine of legitimate expectation. By reason thereof only the
existing right is saved subject, of course, to the provisions of the
statute.(See State of H.P. v. Kailash Chand Mahajan [1992
Supp (2) SCC 351:1992 SCC (L&S) 874:(1992) 21 ATC 528]) ”
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28. The petitioner herein has only challenged the order dated 19
November 2017, which is only a reiteration of the rejection enumerated in
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the rejection order dated 12 November 2008, which was passed more than
10 years ago. The question that that this Court is inclined to comment upon
is, when the earlier order of the year 2008 is still alive, can the impugned
order of the year 2018 be amenable to be challenged.
29. In this regard, this Court is of the view that the petitioner‟s grievances
arose in the year 2008 when his request for one advance increment was
rejected by the respondent. The subsequent rejection orders during the
course of past 10 years are merely the repetition of the stand taken by the
respondent in rejecting the petitioner‟s request.
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30. Since the petitioner has failed to challenge the order of the year 2008
which is the basic order accruing cause of action in favour of the petitioner
to claim for reliefs, any subsequent order which only ascribes the previous
stand taken by the respondent years ago, cannot be tested before this Court
due to the reason that there is an absence of challenge to the basic order.
31. In light of the above, it is observed by this Court that delay and laches
is adopted as a mode of discretion to decline exercise of jurisdiction to grant
relief. The said doctrine is an important facet to determine the entitlement of
the party seeking relief before a writ Court.
32. It is also observed that the Courts ordinarily does not permit an
inordinate and belated approach for redressal of the grievances under the
extraordinary jurisdiction enshrined under Article 226 of the Constitution of
India because it is likely to cause extreme confusion and public
inconvenience, thereby, violating the law settled by the Hon‟ble Supreme
Court in a catena of judgments.
33. If a writ jurisdiction is exercised post a delay which is not
substantiated with any reasons, it might have an effect of inflicting hardship
and inconvenience, further causing injustice on third parties. Furthermore,
when a writ jurisdiction is invoked, unexplained delay is an important factor
which also weighs upon the High Court in deciding whether or not to
exercise such jurisdiction, considering the delay and further developments.
34. The above said principle embodied in the equity‟s maxim „delay
defeats equity‟ is intended to discourage unreasonable delay in presentation
of claims and enforcement of rights. However, this rule is not absolute, as
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the laches which will disqualify for reliefs must be unreasonable under the
particular circumstance; the same is not the situation herein.
35. It is noted that the petitioner‟s grievance arose in the year 2008, when
the respondent rejected his initial request of one advance increment. The
petitioner kept on making representations during the past 10 years without
approaching any other forum for redressal of his grievances. Merely making
representations time and again, irrespective of the fact that the the same
representation is only getting rejected by the respondent does not grant the
petitioner any right to approach this Court and therefore, owing to such
unreasonable and neglectful conduct on the part of the petitioner, the
petitioner cannot be held to be entitled to seek reliefs at such a belated stage.
36. Further, the repeated representation did not give rise to a fresh cause
of action to the petitioner and mere making of representation cannot justify
the petitioner‟s belated approach. According to this Court, the petitioner
cannot be stated to be vigilant of his rights and has acquiesced with the
situation from the year 2008 to 2018 i.e., almost for a period of ten years and
therefore, this Court does not feel that it should exercise its extraordinary
and discretionary writ jurisdiction thereby, granting reliefs to a lethargic
litigant like the petitioner. The petition filed by the petitioner is grossly
belated with no satisfactory explanation for the delay.
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37. In the instant case, the order dated 12 November 2008, attained
finality inter-se between the parties as admittedly the said order was not put
to challenge before any forum. The aforesaid order which attained finality
crystallized the right of the petitioner and the respondent. This Court is not
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inclined to extend its discretion to the petitioner who has reflected a
completely negligent attitude to assert his right and approached after an
inordinate delay.
38. In view of the facts, circumstance and settled principles of law, it
becomes evident that owing to no accrual of fresh cause of action post
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rejection of the petitioner‟s initial representation vide office order dated 12
November 2008, the present petition patently suffers from flagrant delay and
laches for having been filed after a huge interval. This Court is of the view
that there is no accrual of a fresh cause of action and accordingly, the present
petition at the very threshold suffers from laches and delay.
39. At the outset, the instant petition is affected by an unreasonable delay
and, therefore, the petition cannot be entertained and further deserves to be
dismissed on the ground of delay and laches itself. This Court also discerns
no material to establish the propositions put forth by the petitioner with
regard to the delay.
40. In view of the above discussions, this writ petition is accordingly
dismissed. Pending applications, if any, also stand dismissed.
41. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
AUGUST 8, 2023
Dy/ryp
Click here to check corrigendum, if any
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