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CASE NO.: Appeal (civil)  4790 of 2006

PETITIONER: Chairman, U.P.Jal Nigam & Anr.

RESPONDENT: Jaswant Singh & Anr.

DATE OF JUDGMENT: 10/11/2006

BENCH: Dr. AR. LAKSHMANAN & A.K.MATHUR

JUDGMENT: J U D G M E N T  

[Arising out of S.L.P.(c) No.6207 of 2006] WITH   CIVIL APPEAL NOs.4791-4887  of 2006  [ Arising out of  S.L.P. (c)  Nos. 6296,  6380,  6382, 6384,   6386, 6388, 6389, 6390,  6391, 6392, 6393, 6395, 6396,    6397, 6398,  6400, 6401, 6403, 6404, 6405, 6406, 6408,  6409, 6415, 6418, 6431,  6432,  6433, 6437, 6445,6448,  6475,  6864,  6914,  7357,  7394,  8976,  9265,    11828,  9373, 10089,5208, 5321, 5322, 5339, 5340, 5343,5360,  5369, 5373,5379,5383,7122,12975, 9968, 9980, 11830,  9998,  10003, 10072,   12000,   12003,   12001,  11952,          11953,   12892,  12915,  14354,  12917,  12918, 12970,   14350,  14355,  14349,  13225,  14377 , 14348,  14352,   14353,  14816,  14817,  8587,  8619,  8633, 8676, 8726,  8727,  8733,  8737,  8752,  8753,  8801,  8810,    11870,   11871, 11866 & 11860 of 2006]

A.K. MATHUR, J.

       Leave granted.                  All this batch of appeals involve similar questions of law and   fact, therefore, they are disposed of by this common order.                          All these respondents are  the employees of the Uttar Pradesh  Jal Nigam ( hereinafter to be referred to as ’the Nigam’)  and they  were retired on attaining the age of superannuation at 58 years.  Some of them filed writ petitions in the High Court of Judicature at  Allahabad challenging the retirement of the employees of the Nigam   on attaining the age of 58 years whereas the State Government  employees were allowed to continue up to the age of 60 years  and  therefore, they should also be allowed to continue up to the age of 60  years.  The writ petitions filed before the High Court failed and  against that Civil Appeal No.7840 of 2002 and batch of other appeals   were filed before this Court.  This Court disposed of the  case of  Harwindra Kumar  along with other appeals and held that employees  of Nigam are entitled to continue up to 60 years. This has been   reported in (2005) 13 SCC 300.  The operative portion of the said  judgment  reads as under :

               " 10. For the foregoing reasons, we are of  the view that so long as Regulation 31 of the  Regulations is not amended, 60 years which is the  age of superannuation of government servants   employed under the State of Uttar Pradesh shall be  applicable to the employees of the Nigam. However,

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it would be open to the Nigam with the previous  approval of the State Government  to make suitable  amendment  in Regulation 31  and alter the service  conditions of employees of the Nigam, including their  age of superannuation. It is needless to say that if it  is so done, the same shall be prospective.

               11.  For the foregoing reasons, the appeals  as well as writ petitions are allowed, orders passed  by the High Court dismissing the writ petitions as well  as those by the Nigam directing that the appellants of  the civil appeals and the petitioners of the writ  petitions would superannuate upon completion of the  age of 58 years are set aside and it is directed that in  case the employees have been allowed to continue  up to  the age of 60 years by  virtue of some interim  order, no recovery shall be made from them but in  case, however, they have not been allowed to  continue after completing the age of 58 years by  virtue of erroneous decision taken by the Nigam for  no fault of theirs, they would be entitled to payment  of salary for the remaining period up to the age of 60  years which must be paid to them within a period of  three months from the date of receipt of  copy of this  order by the Nigam. There shall be no order as to  costs."

It appears that during the pendency of the appeals and writ  petitions before this Court and after disposal of the same by this  Court, a spate of writ petitions followed in the High Court by the  employees who had retired long back. Some of the petitions were  filed by the employees who retired on attaining the age of 58 years  long back. However, some were lucky to get interim orders allowing  them to continue  in service. Number of writ petitions were filed  in the  High Court in 2005 on various dates  after the judgment in the case of  Harwindra Kumar (supra) and some between 2002 and 2005. All  those writ petitions were disposed of in the light of the judgment in the  case of Harwindra Kumar (supra) and relief was given to them  for  continuing in service up to the age of 60 years. Hence, all these  appeals arise against various orders passed by the High Court from  time to time. So far as the principal issue is concerned, that has been settled  by this Court. Therefore, there is no quarrel over the legal proposition.   But the only question is grant of relief to such other persons who  were not vigilant and did not wake up  to challenge their retirement  and accepted the same  but filed writ petitions after the judgment of  this Court in the case of Harwindra Kumar (supra). Whether they are  entitled to same relief or not ?  Therefore, a serious question that  arises for consideration is whether the employees who did not wake  up to challenge their retirement and accepted the same, collected  their post retirement benefits, can such persons be given the relief in  the light of the subsequent decision delivered by this Court ?

The question of delay and laches  has been examined by this  Court in a series of decisions and laches and delay has been  considered to be an important factor in exercise of the discretionary  relief under Article 226 of the Constitution.  When  a person who is  not vigilant  of his rights and acquiesces with the situation, can his  writ petition be heard after a couple of years on the ground that same  relief should be granted to him as was granted to person similarly  situated who was vigilant about his rights and challenged his  retirement which was said to be made on attaining  the age of 58  years.  A chart has been supplied to us in which it has been pointed  out that about 9 writ petitions were filed by  the employees of the  Nigam  before their retirement wherein their retirement was

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somewhere between 30.6.2005 and 31.7.2005. Two writ petitions  were filed wherein no relief of interim order was passed. They were  granted interim order. Thereafter a spate of  writ petitions followed in  which employees who retired in the years 2001, 2002, 2003, 2004  and 2005, woke up to file writ petitions in 2005 & 2006 much after  their retirement. Whether such persons should be granted the same  relief or not ?

Learned senior counsel for the appellants has invited our  attention to various decisions to impress upon that persons who are  guilty of such laches and acquiesced with the situation should not be  granted any relief because it is going to cost  the Nigam a heavy  financial burden to the tune of Rs.17,80, 43,108/-. Therefore, relief  should be confined to those persons who were continuing  in service   and filed their writ petitions in time but not to all and sundry  who  woke up  to file  the writ petitions much after their retirement.  In this  connection, our attention was invited to a decision of this Court in the  case of  M/s. Rup Diamonds & Ors. v. Union of India & Ors. reported  in (1989) 2 SCC 356, wherein their Lordships observed that those  people who were sitting on the fence till somebody else took up the  matter to the court  for refund of duty, cannot be given the benefit.  In  that context, their Lordships held as follows :

" Petitioners are re-agitating claims which they had  not pursued for several  years. Petitioners were not  vigilant but were content  to be dormant and chose to  sit on the fence till somebody else’s case came to be  decided. Their case cannot be considered on the  analogy of one where a law had been declared  unconstitutional and void by a court, so as to enable  persons to recover monies paid under the  compulsion of a law later so declared void. There is  also an unexplained, inordinate delay in preferring  the present writ petition which is brought after a year  after the first rejection. As observed by the Court in  Durga Prashad case, the exchange position of this  country and the policy of the government regarding  international trade varies from year to year.  In these  matters it is essential that persons who are aggrieved  by orders of the government should approach the  High Court after exhausting  the remedies provided  by law, rule or order with utmost expedition.  Therefore, these delays are sufficient to persuade  the Court to decline to interfere. If a right of appeal is  available, this order rejecting the writ petition shall  not prejudice petitioners’ case in any such appeal. "

       Our attention was also invited to a decision of this Court in the  case of  State of Karnataka & Ors. v. S.M.Kotrayya & Ors. reported in  (1996) 6 SCC 267.  In that case the respondents woke up to claim  the relief which was granted to their colleagues  by the Tribunal  with  an application to condone the delay. The Tribunal condoned the  delay. Therefore, the State approached this Court and this Court after  considering the matter observed as under :

               "  Although it is not necessary to give an  explanation for the delay which occurred within the  period mentioned in sub-section (1) or (2) of Section  21,  explanation should be given for the delay which  occasioned after the expiry of the aforesaid  respective period applicable  to the appropriate case  and the Tribunal should satisfy itself  whether the  explanation offered was proper.   In the instant case,  the explanation offered was that  they came to know  of the relief granted by the Tribunal in August 1989

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and that they filed the petition immediately thereafter.  That is not a proper explanation at all. What was  required of them to explain under  sub-sections (1)  and (2)  was as to why they could not avail of the  remedy of redressal of their grievances before the  expiry of the period prescribed under sub-section (1)  or (2). That was not the explanation given. Therefore,  the Tribunal was wholly unjustified in condoning the  delay."          Similarly,  in the case of Jagdish Lal & Ors. v. State of Haryana  & ors. reported in (1997) 6 SCC 538, this Court reaffirmed the rule if a  person chose to sit over the matter and then woke up after the  decision of the Court, then such person cannot stand to benefit. In  that case it was observed as follows :

               " The delay disentitles a party to  discretionary relief under Article 226 or Article 32 of  the Constitution. The appellants kept sleeping over  their rights for long and woke up when they had the  impetus from Vir Pal Singh Chauhan case. The  appellants’ desperate attempt to redo  the seniority is  not amenable to judicial review at this belated stage."            In the case of  Union of India & Ors. v. C.K. Dharagupta & Ors.  reported in (1997) 3 SCC 395,  it was observed as follows :                 " We, however, clarify that in view of our  finding that the judgment of the Tribunal in R.P.Joshi  gives relief only to Joshi, the benefit of the said  judgment of the Tribunal  cannot be extended to any  other person. The respondent C.K.Dharagupta (since  retired)  is seeking benefit of Joshi case. In view of  our finding that the benefit of the judgment of the  Tribunal dated 17-3-1987 could only be given to  Joshi and nobody else, even Dharagupta is not  entitled to any relief."

       In the case of Government of W.B. v. Tarun K. Roy & Ors.  reported in (2004) 1 SCC 347,  their Lordships considered delay as  serious factor and have not granted relief. Therein it was observed as  follows :

               " The respondents  furthermore are not  even entitled to any relief on the ground of gross  delay  and laches on their part in filing the writ  petition. The first two writ petitions were filed in the  year 1976 wherein the respondents herein  approached the High Court in 1992. In between 1976  and 1992  not only two writ petitions had been  decided, but one way or the other, even the matter  had been considered by this Court in Debdas Kumar.  The plea of delay, which Mr.Krishnamani states,  should be a ground for denying  the relief to the other  persons similarly situated would operate against the  respondents. Furthermore,  the other employees not  being before this Court although they are ventilating  their grievances before appropriate courts of law, no  order should be passed which would prejudice their  cause. In such a situation, we are not prepared to  make any observation only for the purpose of grant  of some relief to the respondents  to which they are  not legally entitled to so as to deprive others there  from who may be found to be entitled thereto by a  court of law."

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       The statement of law has also been summarized in Halsbury’s  Laws of England, Para 911 , pg. 395 as follows :

               " In determining whether  there has been  such delay as to amount to laches, the chief points to  be considered are :                 (i)     acquiescence on the claimant’s part;  and                 (ii)    any change of position that has  occurred on the defendant’s part.                 Acquiescence in this sense does not mean  standing by while the violation of a right is in  progress, but assent after the violation  has been  completed and the claimant has become aware of it.  It is unjust to give the claimant a remedy where, by  his conduct, he has done that which might fairly be  regarded as equivalent to a waiver of it; or where by  his conduct and neglect, though not waiving the  remedy, he has put the other party in a position in  which it would not be reasonable to place him if the  remedy were afterwards to be asserted. In such  cases lapse of time and delay are most material.  Upon these considerations rests the doctrine of  laches. "

       In view of the statement of law as summarized above, the  respondents are guilty  since the respondents has acquiesced  in  accepting the retirement and did not challenge the same in time.  If  they would have been vigilant enough, they could have filed writ  petitions as others did in the matter.  Therefore, whenever it appears  that the claimants  lost time or while away and did not rise to the  occasion in time for filing the writ petitions, then in such cases, the  Court should be very slow in granting the relief to the incumbent.   Secondly, it has also to be taken into consideration the question of   acquiescence or waiver on the part of the incumbent whether other  parties are going to be prejudiced if the relief is granted. In the  present case, if the respondents would have challenged their  retirement being violative  of the provisions of the Act, perhaps the  Nigam could have taken appropriate steps to raise funds so as to  meet the liability but by not asserting their rights the respondents  have allowed time to pass and after a lapse of couple of years, they  have filed writ petitions claiming the benefit for two years. That will   definitely require the Nigam to raise funds which is going to have  serious financial repercussion on the financial management of the  Nigam. Why the Court should come to the rescue of such persons  when they themselves are guilty of waiver and acquiescence.                  

       As against this, our attention was invited to a decision of this  Court in the case of Dayal Singh & Ors. v. Union of India & Ors.  reported in (2003) 2 SCC 593.  In that case their Lordships observed  that when the High Court exercised discretion and condoned the  delay, it is not proper for the Supreme Court at the SLP stage to set  aside the High Court’s order on that ground alone and more so,  where the impugned judgment is legally sustainable. This case does  not provide any assistance to the respondents.

       Learned counsel for the appellants has also pointed out that at  this belated stage if the relief is given  to the respondents  who have  retired and accepted the retirement, that will cause  a huge burden to  the Nigam to the tune of Rs.17,80,43,108/- and there is no sufficient  funds for incurring such a huge amount at this belated stage. This will  completely ruin the financial condition of the Nigam if all the persons  who were not vigilant and did not take up their cause before the

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Court, it would prove a great set back to the Nigam.  In this regard, a  reference was made to a decision of this Court in the case of  Krishena Kumar v. Union of India & Ors. etc. etc. reported in (1990) 4  SCC 207. In that case  the question was to grant pensionary benefit  to the provident fund holders of the railways. A submission was made  if the Court feels that a positive direction cannot be given to the  government, it was prayed that at least an option should be given to  the respondents either to withdraw  the benefit of switching over to  pension from everyone or to give it to the petitioners as well, so that  the discrimination must go.  This Court negatived the submission and  it was observed as follows :

               " We are not inclined to accept either  of  these submissions. The PF retirees and pension  retirees having not belonged to a class, there is no  discrimination. In the matter of expenditure includible  in the Annual Financial Statement, this Court has to  be loath to pass any order or give any direction,  because of the division of functions between the  three co-equal organs of the government under the  Constitution."

Therefore,  in case at this belated stage if similar relief is  to be given  to the persons who have not approached the Court  that will  unnecessarily overburden the Nigam and the Nigam will completely  collapse with the liability of payment  to these persons in terms of two  years’ salary and increased benefit of pension and other  consequential benefits.   Therefore, we are not inclined to grant any  relief to the persons who have approached the Court after their  retirement.  Only those persons who have filed the writ petitions when  they were in service or who have obtained interim order for their  retirement, those persons should be allowed to stand to benefit and  not others. We have been given a chart of those nine persons,  who  filed  writ petitions and  obtained stay  & are continuing in service.  They are as follows:

               1.      Shri Bhawani Sewak Shukla                 2.      Shri Vijay Bahadur Rai                 3.      Shri Girija Shanker                 4.      Shri Yogendra Prakash Kulshersht                 5.      Shri Vinod Kumar Bansal                 6.      Shri Pradumn Prashad Mishra                 7.      Shri Banke Bihari Pandey                 8.      Shri Yashwant Singh             9.  Shri Chandra  Shekhar

       And the following persons filed Writ Petitions before retirement  but no stay order granted.

               1. Shri Gopal Singh Dangwal (W/P No. 35384/05 vide                                                                                                                        order  dated 5.5.2005)                   2. Shri R.R. Gautam           (W/P No. 45495/05  vide order                                                                  dated  15.6.05)

The benefits shall only be confined to above mentioned   persons  who have filed writ petitions before their retirement or they  have obtained interim order before their retirement. The appeals filed  against these persons by the Nigam shall fail and the same are  dismissed. Rest  of  the appeals are allowed and orders passed by  the High Court are set aside.  There  would be no order as to costs.                 It  is submitted that contempt petitions were filed before  the High Court. In view of the order passed in this batch of appeals,  the contempt petitions will not survive and the same are dismissed.

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