Chattisgarh High Court
Archana Saxena vs Guru Ghasidas Vishwavidhyalaya … on 25 June, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:27807
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order reserved on: 12.03.2025
Order passed on: 25.06.2025
WPS No. 1615 of 2015
1 - Archana Saxena, W/o Md. Jamil Ansari, Aged About 41 Years, Presently
working as Assistant Librarian, Department of Pharmacy, Guru Ghasidas
Vishwavidhyalaya, Koni, P.S. Koni Bilaspur District Bilaspur Chhattisgarh.
... Petitioner(s)
versus
1 - Guru Ghasidas Vishwavidhyalaya (Central University) Through its Vice
Chancellor, Guru Ghasidas Vishwavidhyalaya, Koni Bilaspur District Bilaspur
Chhattisgarh.
2 - Registrar, Guru Ghasidas Vishwavidhyalaya (Central University) Koni,
Bilaspur, District- Bilaspur Chhattisgarh.
3 - Smt. Rashmi Dueby, Assistant Librarian, Central Library, Guru Ghasidas
Vishwavidhyalaya, Koni, Bilaspur, District Bilaspur, Chhattisgarh.
... Respondent(s)
For Petitioner : Mr. Mateen Siddiqui, Advocate
For Respondents No. 1 & 2 : Mr. Hemant Gupta, Advocate
For Respondent No.3 : Mr. Neeraj Choubey, Advocate
2
Hon'ble Smt. Justice Rajani Dubey
CAV Order
1. The petitioner has preferred this writ petition under Article 226 of the
Constitution of India against the order dated 26.10.1997 seeking a writ
in the nature of Quo- Warranto and declaring the appointment of
respondent No.3 on the post of Assistant Librarian in the Central
Library as void-ab-initio and quashing of order dated 26.10.1997
(Annexure P/4).
2. Brief facts of the case as mentioned in the petition, are that an
advertisement was issued by the University for the post of Assistant
Librarian on 30.07.1997. The requisite qualification for the said post
was that the applicant should have possessed the Masters Degree in
Library Science/Information Science with at least 55% marks in the
post graduate examination together with at least 50% marks in
graduate examination of Library Science/Information Science from
recognized University. The experience in Library
automation/computerization and Informatics will be preferred. The copy
of the advertisement and copy of the relevant rules for selection i.e.
Information Bulletin are annexed as Annexure P/1 and Annexure P/2
respectively. Pursuant to the said advertisement, petitioner being
eligible, applied for the above post of Assistant Librarian. The copy of
the mark-sheets of the petitioner pertaining to her qualification is
collectively annexed as Annexure P/3.
After due selection process, the selection list was issued
whereby three candidates were selected namely Ku. Karuna Pasi, in
SC category, Ku. Shaila Sahu in OBC category and Smt. Rashmi
Dubey i.e. respondent No.3 in the General category. Accordingly, on
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the basis of the above selection list, the respondent No. 3 has been
appointed vide order dated 26.10.1997 (Annexure P/4). As the
petitioner was in the waiting list, the Executive Council took a decision
to appoint the petitioner in General category and one Afsha Ansari in
OBC Category on contract basis on fixed pay of Rs.4,000/-. On being
satisfied from the above decision taken by the University, the petitioner
rendered her services in the University honestly and sincerely without
any complaint. Looking to the services of the petitioner, the Executive
Council of the University took a decision to provide regular pay scale to
the petitioner w.e.f. 01.04.2004. The copy of the order dated
28.11.1999 and copy of order dated 21.05.2004 is annexed as
Annexure P/5 and Annexure P/6 respectively.
Vide order dated 03.04.2006, the University without affording
opportunity of hearing and without following the principles of natural
justice, cancelled the order of granting regular pay scale to the
petitioner, which has been challenged by the petitioner before this
Court whereby the effect and operation of the above impugned order
dated 03.04.2006 (Annexure P/7) has been stayed by this Court vide
order dated 06.04.2006 (Annexure P/8) passed in W.P.(S). No.
605/2006. On the basis of the interim order, the petitioner was working
on the post of Assistant Librarian honestly and sincerely. After serving
in the above department, it came to the knowledge of the petitioner
from relevant sources that the respondent No.3 who was selected in
pursuant to the advertisement dated 30.07.1997 was not having the
requisite qualification and she did not fulfill the eligibility criteria to the
post of Assistant Librarian. Accordingly, the petitioner through his
counsel applied to get the documents of respondent No.3 along with
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the documents of other candidates under the Right to Information Act.
The said documents were provided by the University on 31.10.2014
(Annexure P/9). After perusing the mark-sheets and application of the
respondent No.3, the petitioner was surprised as the respondent No.3
did not fulfill the requisite marks which was essential for the eligibility
and even she was over age on the very date of advertisement. The
respondent No.3 obtained 54.89% marks in M.Lib.I.Sc. whereas the
minimum qualification is 55% marks in the post graduate examination.
The maximum age prescribed for the General Category is 35 years
whereas the respondent No.3 was more than 35 years on the very date
of advertisement. Therefore, the respondent No.3 is not eligible for the
post of Assistant Librarian as per the advertisement and as per the
relevant rules of selection. Inspite of this, she has been selected and
appointed to the said post. The petitioner approaches the University on
the basis of the above documents of the respondent No.3 but no action
was taken. Thereafter, being aggrieved by the same, the petitioner
made a representation on 18.02.2015 (Annexure P/10) to the
respondent No.1 to initiate action against respondent No.3 and to
absorb the services of the petitioner w.e.f. 26.10.1997 but till date no
action has been taken on the representation of the petitioner. Even the
petitioner made reminder letter dated 20.03.2015 (Annexure P/11) but
even though no action was taken. Hence, this petition for following
reliefs:-
“10.1. That this Hon’ble Court be pleased to issue a writ of quo-
warranto and declaring the appointment of respondent No.3 on
the post of Assistant Librarian in Central Library as void-ab-initio
and to quash the order of appointment dated 26.10.1997.
510.2. That this Hon’ble Court may kindly be pleased to issue a
writ in the nature of mandamus directing the respondents No. 1
and 2 to absorb the services of the petitioner from 26.10.1997
and to provide all the consequential benefits to the petitioner.10.3. That the Hon’ble Court may kindly be pleased to grant any
other relief as it may deem fit and appropriate.10.4. Cost of the petition.”
3. Mr. Mateen Siddiqui, learned counsel for the petitioner submits that the
respondent authorities in an arbitrary and illegal manner did not
consider the petitioner for the post of Assistant Librarian in spite of
having requisite qualification. The respondent No.3 is not eligible for
selection on post of Assistant Librarian on the very date of appointment
as she was not having the requisite percentage of marks in Post
Graduate examination and she was over-age on the very date of
issuance of advertisement. He further submits that it is a well settled
law that a writ of quo-warranto be issued by the constitutional courts to
see that a public office is not held by usurper without any legal
authority. Further, it is well settled law that doctrine of delay and laches
should also not been allowed and play because the person holds the
public office as a usurper and such continuance is to be prevented by
the Court. Due to above action of the University, the petitioner who is
having much meritorious having 67.88% of marks in B.Lib.I.Sc. and
69.18% of marks in M.Lib.I.Sc. were not considered by the University
for the post of Assistant Librarian. The petitioner possessed all the
essential qualification as mentioned in the advertisement but inspite of
that, the petitioner has not been considered. The respondent
authorities did not consider the grievance of the petitioner inspite of
several approaches made by the petitioner. The action of the
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respondent authorities is illegal, malafide, arbitrary and against the
service jurisprudence and constitutional principles.
Reliance has been placed on the decision of Hon’ble Supreme
Court in the matter of The Registrar, Rajiv Gandhi University of
Health Sciences, Bangalore Vs. G. Hemlatha and Ors.,
Manu/SC/0668/2012; State of West Bengal Vs. Anindya Sundar Das
and Ors., Manu/SC/1299/2022, Orissa Public Service Commission
and Ors. Vs. Rupashree Chowdhary and Ors., Manu/SC/0879/2011
and this Court’s order dated 19.08.2019 passed in WPC No. 1922 of
2014 {Somendra Singh Bhadoriya Vs. State of Chhattisgarh and
Ors.}.
4. On the other hand, learned counsel for respondents No. 1 to 3 strongly
opposes the prayer of the petitioner and submits that the petition of the
petitioner is absolutely false, frivolous and misconceived and has been
filed by leveling bad and wild allegation against the respondents and
made unwanted comments against the respondents without any basis.
In fact the petitioner is misleading/suppressing the material facts before
this Court and she has not came with the clean hands as well. In fact
the petitioner was holding the position of Assistant Librarian on contract
basis, illegally, since 28.11.1999 and continued unlawfully to the same
position with highly manipulative manner. The instant petition is barred
by gross delay. There is 18 years of delay in filing the instant petition. In
the matter of Alok Sharma Vs. state of C.G. & others, this Court has
held that the delay has always been considered vital in service matter.
If a period of six months delay was considered sufficient to deny in a
promotion matter, three years delay in matters relating to appointment
7
would undoubtedly be sufficient to deny relief especially when third
party rights have accrued in favour of the respondent. So, the petition
is not mentionable.
Respondent No.3 is a well qualified and she was completing her
B.Sc. degree in the year of 1982 and thereafter she completed the
degree of Bachelor in Library & Information Science and thereafter, in
the year of 1985, she completed master of Library & Information
Science degree from the Doctor Harisingh Gour Vishwavidyalaya,
Sagar and at the time of the advertisement of the post in the year 1995,
the respondent No.3 having 10 year experience in the field of Library
Science, applied for the post of Assistant Librarian. The candidature of
the respondent No.3 was found suitable by the scrutiny committee,
therefore, the respondent- University issued the call letter to the
respondent No.3 for appearing before the Selection Committee. The
duly constituted selection Committee, recommended the name of the
respondent No.3 for appointment on the post of Assistant Librarian
after verifying the merits of all the candidates, appeared in the
interview. The petitioner was not a candidate of the above selection
process which was initiated by the respondent University in pursuant to
the advertisement No. GGU/1/95, therefore, she has no locus to
challenge the discretionary power of the Selection Committee. The
petitioner did not place any material on record to establish that she was
participated in the above selection process. At the time of advertising
the post of Assistant Librarian, the petitioner was not having the
minimum prescribed qualification, therefore, she was not applied for the
post on that time and subsequently the new post of the Assistant
Librarian was created by the University and the back door appointment
8
of the petitioner was made out without following the due process of law.
The Selection Committee duly formed by the university as per provision
of the University act 1973, consisting of highly qualified distinguished
experts, had evaluated the qualification, experience of the candidates,
including the respondent No.3. The Selection Committee prepared a
panel in the order of merit which was open before the Executive
Council of the respondent University on 26.10.1997 and since the
appointing authority have been accepted the recommendation, thus the
respondent University have issued the appointment order in favour of
the respondent No.3. There is no any evidence with regard to
participation of the petitioner in the selection process, even there is no
record with the University which shows that the petitioner was
appeared before any one of the Selection Committee. The respondent
University on 17.12.2013 (Annexure/R-3/1) has clearly made the
statement before the Central Information Commission that no any
record of the selection Committee on the basis of which, the petitioner
was appointed as Assistant Librarian on contract basis, is available
with the University. After upgradation of the respondent University as
Central University, by virtue of the Central Universities act 2009, the
services of the respondent No.3 are fully protected under section 45
sub section 2(a) of the central Universities act 2009. After conversation
of the respondent University, as per direction of the University Grant
Commission, vide memo dated 05.09.2011, the respondent University
constituted a committee for scrutinization of the academic qualification
of the appointee in which the fact was again appeared that, even the
contractual appointment of the petitioner was not made in accordance
with law. Copy of the chart prepared by the Committee is annexed as
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Annexure/R-3/2. The respondent No.3 was successfully completed 18
years of services as Assistant Liberian and she was accrued
indefeasible right upon the post, because she was appointed strictly in
accordance with law after facing duly constituted selection committee.
The respondent No.3 have got the regular status in the respondent
University and vide order dated 29.01.2014, she was getting the senior
grade pay scale from 27.10.2003 as per resolution of the executive
Council of the University dated 29.01.2014 (Annexure/R-3/3). As per
Section 49(1) of the University Act of 1973, no person shall be
appointed as a professor, Reader, Lecturer, or to any other teaching
post of the University paid by the University except on the
recommendation of a committee of selection constituted in accordance
with sub-section (2) provided that if appointment to any of the teaching
posts aforesaid is not expected to continue for more than six months
and cannot be delayed without detriment to the interest of the
department or institution maintained by the University, the executive
council may make such appointment without obtaining the
recommendation of the committee of selection constituted under sub-
section (2) but the person so appointed, shall not be retained on the
same post for a period exceeding six months or appointed to another
post in the service of the University except on the recommendation of
the said committee of selection. Neither the name of the petitioner was
recommended by the any one of the selection committee nor the
contractual appointment was made as per decision of the Executive
Council, appointing authority. By way of this petition, the petitioner was
trying to absorb in the regular post on the basis of her illegal
appointment. The petitioner had filed writ petition i.e. W.P No.
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605/2006 before this Court and after being acknowledged by the fact
that there is no any possibility for the writ petition being allowed by the
Court, then she filed the instant writ petition by way of writ of quo-
warranto for settling her illegal appointment.
Respondent No. 3 has secured 54.89% in M.Lib. as per the
records available but respondents No. 1 & 2 cannot decide the
eligibility of the respondent No. 3 after the lapse of 18 years from her
undisputed services and in the light of the judgment of the Hon’ble High
court of Madhya Pradesh (Indore Bench) dated 04-07-1997. In lieu of
the said judgment the selection committee had rightly taken the
decision to round off the marks from 54.89% to 55%. Respondent No. 3
had possessed much experience than the petitioner as the petitioner
was a fresher at that time and there is no record of the participation of
the petitioner in the selection process and it would be the very relevant
factor of selection of the respondent No. 3 for the post of Assistant
librarian as per rule applicable at that time. The representation dated
18.02.2015 of the petitioner is under process. But all the documents
and facts are against the petitioner particularly such a long period was
passed after the selection of the respondent No.3 and more importantly
the petitioner has no locus. Thus, the petitioner’s claim is not
sustainable in the eye of law and deserves to be rejected. None of the
rights of the petitioner is being violated nor is the petitioner likely to
suffer any loss whatsoever. Therefore, this petition is not maintainable
and appointment of respondent No.3 is strictly in accordance with law.
The petitioner sought a relief that she would be considered to be a
regular employee of the respondent but the same relief is under
11
consideration before this Court in WP No. 605/2006. Thus, this petition
being without any merit is liable to be dismissed.
Reliance has been placed on the decisions of Hon’ble Supreme
Court in the matter of Rameshwar Dass Mehla Vs. Om Prakash
Saini & Ors. reported in (2010) 15 SCC 790; State of U.P. and
another Vs. Pawan Kumar Tiwari and others reported in (2005) 2
SCC 10; State of Punjab and another Vs. Asha Mehta reported in
(1997) 11 SCC 410, Leena Lukas W/o Abdul Jamil Khan Vs. State
of Chhattisgarh and Ors. reported in 2015 Lawsuit (Chh) 309 and
this Court’s judgment dated 03.03.2025 passed in WPS No. 4380 of
2018 {Devdatta Tiwari Vs. State of Chhattisgarh and others}.
5. In rejoinder, learned counsel for the petitioner submits that on
31/10/2014 under RTI Act, 2005, she obtained the documents of the
respondent No. 3 and came into knowledge of the fact that the
respondent No. 3 is ineligible for the post of Assistant Librarian.
respondent No. 3 did not possess the minimum eligibility criteria for the
post of Assistant Librarian and she has not possessed 55% marks. It is
settled law under the Madhya Pradesh University Act, 1973 that once
the executive council took a decision for granting regular pay scale and
allowances to the petitioner, the same become the service condition
from the date and as the Executive Council vide meeting dated
03.03.2004 held that the petitioner is entitled for regularization and
grant of regular pay scale and it becomes the service condition of the
petitioner and it cannot be changed as per the aw laid down by Hon’ble
Supreme Court without giving show-cause-notice and opportunity of
hearing to the petitioner and it is against the principles of natural
12
justice. The petitioner has been duly appointed through decision of
Executive council in its meeting held on 27.04.1998 from the
recommended list of Selection Committee and regular pay scale has
been provided to the petitioner on the basis of Executive Council
decision dated 03.03.2004. therefore, the reply of respondents is not
acceptable and petitioner also filed document i.e. notesheet of
University (RJ/1).
6. Heard counsel for the parties and perused the material available on
record.
7. It is not disputed in this case that an advertisement was issued by the
University for the post of Assistant Librarian on 30.07.1997. After due
selection process, respondent No.3 was appointed vide order dated
26.10.1997 on the said post. The instant petition has been filed by the
petitioner on 30.04.2015.
8. In the matter of Rameshwar Dass Mehla Vs. Om Prakash Saini and
others reported in (2010) 15 SCC 790, Hon’ble Supreme Court
allowed the appeal of the appellant on the ground that 54.85% marks
is rounded off and treated as 55% by Selection Committee. There is no
interference in the decision of expert committee to select appellant.
9. Petitioner filed this petition in 2015 seeking relief of quo-warranto and
declaring the appointment of respondent No.3 and quashing the order
of the appointment dated 26.10.1997. The explanation of the petitioner
with regard to long delay in filing the instant petition is that she had
obtained the documents in this regard through RTI on 31.10.2014.
10. In the matter of Alok Sharma Vs. State of Chhattisgarh and others
13
& another connected matter, this Court vide order dated 11.09.2014
passed in WA No. 170/2013 & WA No. 321/2013 observed in paras 20
and 21 as under:-
“20. The principles concerning delay to bar relief under Article 226
in view of past precedents was culled as follows in (2011) 5 SCC
607 (Shankara Coop. Housing Society Ltd. v. M. Prabhakar)
holding :-
54. The relevant considerations, in determining whether delay
or laches should be put against a person who approaches the
writ court under Article 226 of the Constitution is now well
settled. They are:
(1) There is no inviolable rule of law that whenever there is a
delay, the Court must necessarily refuse to entertain the
petition; it is a rule of practice based on sound and proper
exercise of discretion, and each case must be dealt with on its
own facts.
(2) The principle on which the Court refuses relief on the
ground of laches or delay is that the rights accrued to others
by the delay in filing the petition should not be disturbed,
unless there is a reasonable explanation for the delay,
because Court should not harm innocent parties if their rights
had emerged by the delay on the part of the petitioners.(3) The satisfactory way of explaining delay in making an
application under Article 226 is for the petitioner to show that
he had been seeking relief elsewhere in a manner provided by
law. If he runs after a remedy not provided in the statute or the
statutory rules, it is not desirable for the High Court to condone
the delay. It is immaterial what the petitioner chooses to
believe in regard to the remedy.
(4) No hard-and-fast rule, can be laid down in this regard.
Every case shall have to be decided on its own facts.
14
(5) That representations would not be adequate explanation to
take care of the delay.
21. Delay has always been considered vital in service matters. If
a period of six months delay was considered sufficient to deny
relief in a promotion matter, three years delay in matters relating
to appointment would undoubtedly be sufficient to deny relief
especially when third party rights have accrued in favour of
respondent no.4 by appointment on 28.2.2006 from the revised
select list. The observations in (1975) 1 SCC 152 (P.S.
Sadasivaswamy v. State of T.N.) were prophetic given the
present nature of cases.
“2… A person aggrieved by an order of promoting a junior over
his head should approach the Court at least within six months
or at the most a year of such promotion. It is not that there is
any period of limitation for the Courts to exercise their powers
under Article 226 nor is it that there can never be a case where
the Courts cannot interfere in a matter after the passage of a
certain length of time. But it would be a sound and wise
exercise of discretion for the Courts to refuse to exercise their
extraordinary powers under Article 226 in the case of persons
who do not approach it expeditiously for relief and who stand
by and allow things to happen and then approach the Court to
put forward stale claims and try to unsettle settled matters. The
petitioner’s petition should, therefore, have been dismissed in
limine. Entertaining such petitions is a waste of time of the
Court. It clogs the work of the Court and impedes the work of
the Court in considering legitimate grievances as also its
normal work. We consider that the High Court was right in
dismissing the appellant’s petition as well as the appeal.”
11.The Hon’ble Supreme Court in the matter of Rushibhai Jagdishbhai
Pathak Vs. Bhavnagar Municipal Corporation reported in 2022 SCC
Online SC 64 held as under:-
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‘9. The doctrine of delay and laches, or for that matter statutes
of limitation, are considered to be statutes of repose and
statutes of peace, though some contrary opinions have been
expressed (in Nav Rattanmal Vs. state of Rajasthan, AIR 1961
SC 1704). The courts have expressed the view that the law of
limitation rests on the foundations of greater public interest for
three reasons, namely, (a) that long dormant claims have more
of cruelty than justice in them; (b) that a defendant might have
lost the evidence to disapprove a stale claim; and (iii) that
persons with good causes of action (who are able to enforce
them) should pursue them with reasonable diligence (State of
Kerala Vs. V.R. Kalliyanikutty, (1999) 3 SCC 657 relying on
Halsbury’s Laws of England, 4th Edn.. Vol. 28, para 605;
Halsbury’s Laws of England. Vol. 68 (2021) para 1005.
Equally, change in de facto position or character, creation of
third party rights over a period of time, waiver, acquiesce, and
need to ensure certitude in dealings, are equitable public
policy considerations why period of limitation is prescribed by
law. Law of limitation does not apply to writ petitions, albeit the
discretion vested with a constitutional court is exercised with
caution as delay and laches principle is applied with the aim to
secure the quiet of the community, suppress fraud and perjury,
quicken diligence, and prevent oppression. (see Popat and
Kotecha Property Vs. State Bank of India Staff Association
(2005) 7 SCC 510). Therefore, some decisions and judgments
do not look upon pleas of delay and faches with favour,
especially and rightly in cases where the persons suffer from
16
adeptness, or incapacity to approach the courts for relief.
However, other decisions, while accepting the rules of
limitation as well as delay and laches, have observed that such
rules are not meant to destroy the rights of the parties but
serve a larger public interest and are founded on public policy.
There must be a lifespan during which a person must
approach the court for their remedy. Otherwise, there would be
unending uncertainty as to the rights and obligations of the
parties. (See N. Blarkrishnan Vs. M. Krishnamurthy, (1998)7
SCC 123. Referring to the principle of delay and laches, this
Court, way back in Moons Mils Ltd Vs. M.R. Mehar, President,
Industrial Court, Bombay AIR 1967 SC 1450, had referred to
the view expressed by Sir Barnes Peacock in The Lindsay
Petroleum Company and Prosper Armstrong Hurd, Abram
Farewell, and John Kemp, (L.R.) 5 P.C.221 in the following
words:
“Now 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 his
conduct, done that which might fairly be regarded as
equivalent to a waiver of it, or where by this 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,
17that delay of course not amounting to a bar by any statute of
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 relates to the remedy.”
12. Recently, the Hon’ble Supreme Court in the matter of Bichitrananda
Behera Vs. State of Orissa and others reported in 2023 Livelaw
(SC) 883, under relevant para 21 held as under:-
“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
18settled 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 supplied)
(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 non consideration of condonation in certain
19
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 2
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
20
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
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
21
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)
(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
22would 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 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
23respondent 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 Milis 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
(LAS) 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 chiel 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
24
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 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
25
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,
26Vol. 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.”
13. In light of above, it is clear that it is the duty of the Court to scrutinize
whether such enormous delay is to be ignored without any justification.
In the present case, it is evident from the facts that the respondent
No.3 was appointed in the year 1997. Earlier, the petitioner had
preferred a petition in 2006 and as per the petitioner herself, she was
27
working in the same university but she did not raise any objection with
regard to appointment of respondent No.3 and in 2015 i.e. after lapse
of 18 years, she has filed the instant petition and for such long delay,
no sufficient explanation was offered by the petitioner.
14. In the light of the factual position coupled with the decision of Hon’ble
Supreme Court as referred to above, taking note of the law laid down
by the Hon’ble Apex Court, more particularly, with regard to delay in
approaching the Court, I am of the view that the instant petition is liable
to be dismissed on the ground of delay and laches.
15. In the result, the writ petition is dismissed on the ground of delay and
laches.
Sd/-
(Rajani Dubey)
JUDGE
Ruchi
RUCHI YADAV Digitally signed by RUCHI YADAV