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SATYEN VAIDYA, J. –

By way of instant petition, petitioner has prayed for following substantive relief(s):-

(i) That impugned order dated 21.01.2012 (Annexure P-5) may be declared illegal. The petitioner may be held entitled to an appropriate place in the seniority list by ordering his promotion and consequent benefits on the basis of merit obtained by him in the gradation test/courses for the ranks of Head Constable and Assistant Sub Inspector.

(ii) That the impugned final seniority list (Annexure P-6) of Assistant Sub Inspectors may be quashed and set aside. The respondents may be directed to re-determine the seniority list of Assistant Sub Inspectors for considering petitioner’s promotion as Head Constable and Assistant Sub Inspector on the basis of merit in Grade-II and Grade-I courses/tests.

2. Petitioner was appointed as Constable (Wireless Operator) in the State Police Department on 20.02.1990. He qualified Basic Radio Operator Grade-III Course in 1991 by securing 1st position. In 1995, petitioner qualified Radio Operator Grade-II Course by securing 3rd position. He was promoted to the post of Head Constable in May, 1995. Petitioner also qualified Radio Operator Grade-I Course by securing 2^nd position and he was promoted to the post of Assistant Sub Inspector in the month of June, 1999.

3. Respondent No. 2 circulated tentative seniority list of Assistant Sub Inspectors showing seniority position as on 28.06.2010. Petitioner submitted a representation against the said tentative seniority list on the ground that his seniority was liable to be reckoned on the basis of his merit in the gradation tests as provided in Punjab Police Rules (for short “PPR”).

4. The representation of the petitioner was rejected, vide order dated 21.01.2012 (Annexure P-5) and the seniority list was finalized, vide Annexure P-6 on 01.02.2012.

5. Aggrieved against the rejection of his representation (Annexure P-5) and circulation to final seniority list (Annexure P-6), petitioner has approached this Court by way of this petition for reliefs, as noticed above.

6. I have heard learned counsel for the parties and have also gone through the record of the case carefully.

7. The case as canvassed on behalf of the petitioner is that the service conditions of petitioner are governed by PPR, which inter alia provides for the merit in gradation tests as criteria for promotion and seniority. Reference has been made to standing order No. 1 of 1999, notified on 07.08.2000, wherein the past practice of not adhering to PPRs was deprecated and it was mandated that in future the promotions and seniority shall be governed strictly as per PPRs by taking into account the merit in gradation tests. It has been contended that the issuance of standing order No. 1 of 1999, was mere paper formality, whereas the provisions of PPR were applicable to the service in Police Department of the State even prior thereto.

8. It is further contended for petitioner that a Division Bench of this Court while deciding LPA No. 53 of 2009, titled as Sita Ram Vs. State of H.P. and Ors., had settled the principle to be adopted in the matter of seniority/promotions and directions were issued to the police department to re-determine the seniority on the basis of such principle. The petitioner is stated to have exercised option to represent to the authorities in light of the decision in LPA No. 53 of 2009.

9. The official respondents have contested the claim of petitioner by alleging that the standing order No. 1 of 1999 could not be applied retrospectively and the petitioner having promoted as Head Constable and thereafter as Assistant Sub Inspector prior to issuance of said standing order, was not entitled to raise objection at such a belated stage. The rejection of the representation of the petitioner has been justified for the reasons detailed thereunder.

10. Noticeably, petitioner had raised objection to his seniority position after thirteen years of his promotion as Assistant Sub Inspector. It is not a case where no seniority lists were circulated in between 1999 and 2010. The officials respondents by way of their reply have submitted that the tentative seniority list dated 28.06.2010 was framed by taking into consideration various seniority lists circulated between 1990 and 2010. In his representation to the authorities, petitioner also had clearly admitted that he had also raised similar objection in the year 2003, when the seniority lists of ASI was circulated, which was rejected. He has further submitted that though his representation stood rejected but since the whole matter was being reviewed on the directions of this Court, the petitioner was re-agitating his claim.

11. Admittedly, petitioner had not taken resort to legal recourse prior to filing of this petition. Petitioner is seeking entitlement to agitate his belated claim on the strength of directions issued by this Court in LPA No.53 of 2009, titled as Sita Ram Vs. State of H.P. and Ors.

12. A Division Bench of this Court decided LPA No. 53 of 2009, on 08.12.2010. Perusal of judgment in LPA No. 53 of 2009, reveals that the issue in said appeal related to the determination of seniority inter se the persons who were appointed by same order and had joined on one day. The Division Bench reiterated the legal principle that in such event the merit in select list would prevail over any other criteria.

13. Thus, the assertion of petitioner that he has a fresh cause of action for filing the instant petition after judgment in LPA No. 53 of 2009, cannot be sustained. Petitioner is claiming a better seniority position on the basis of his merit in gradation tests i.e. Radio Operator Grade-III, II and I Courses, which was not the subject matter or issue involved in LPA No. 53 of 2009.

14. The impugned order, Annexure P-5, whereby the representation of the petitioner has been rejected also refers to orders passed by this Court on 19.09.2011 in CWP No. 6599 of 2010 alongwith other connected matters. In order to ascertain, whether petitioner could get a fresh cause of action on the basis of aforesaid order passed in CWP No. 6599 of 2010, the said order has also been perused. It is found that CWP No. 6599 of 2010 alongwith other connected matters pertained to issue of reorganization of wireless and Technical Wing of State Police Department and Formation of Directorate of Police Communication and Technical Services. In this background, the order was passed on 19.09.2011, taking into consideration the fact that the Directorate of Police Communication and Technical Services, though was creation of Section 17(2) of Himachal Pradesh Police Act, 2007, but practically had come into being on 28.06.2010. It was observed that prior to formation of said Directorate two wings i.e. Wireless and Computer, were working separately. In the Wireless Wing, there were four sub cadres i.e. a.) Operator, b.) Technician, c.) Technical Store and d.) General duty. All these sub cadres were found to be separate and distinct. Hence, it was further observed that integration was required to be effected as per principles of service jurisprudence on integration and for such reason, the government was required to identify the posts which were to be integrated as on the date of coming into force of Directorate of Police Communication and Technical Services.

15. It was in the aforesaid factual backdrop that liberty was granted to the eligible incumbents to file their representation with directions to the authorities to decide the same. The principle as laid down in LPA No. 53 of 2009, was reiterated to the effect that the seniority had to be decided on the basis of the position in the merit list/rank list prepared for appointment to the post of Radio Technician and the merit/rank list separately prepared for the appointment to the post of Constable/Operator, which as noticed above, were found to be separate and distinct.

16. Thus, once again the issue as raised by the petitioner in the instant petition alleging his claim to better seniority position on the basis of merit in the gradation tests is quite distinct and separate from the issue involved in CWP No. 6599 of 2010 alongwith connected matters. Petitioner is not justified in claiming right to file representation on the basis of judgments passed either in LPA No. 53 of 2009 or order dated 19.09.2011, passed in CWP No. 6599 of 2010, which makes the case of petitioner as independent claim on the issue which was available to him in the year 1995, when he was promoted as Head Constable and also in the year 1999, when he got promoted to the post of Assistant Sub Inspector. As noticed above, petitioner had earlier also raised such a claim, more particularly, in the year 2003, which was rejected.

17. In such factual situation, the question arises whether the claim of the petitioner at such belated stage can be entertained.

18. It is trite law that seniority position once settled and having remained unchallenged for long period of time cannot be unsettled at later stage, obviously to avoid various administrative and legal implications. There is a longline of decisions by Hon’ble Supreme Court on this aspect and a few of which are Malcom Lawrence Cecil D’souza Vs. Union of India and Ors.,(1976) 1 SCC 599, R.S. Makashi and Others Vs. I.M. Menon and Others, (1982) 1 SCC 379, Dayaram Asanand Gursahani Vs. State of Maharashtra and Others, (1984) 3 SCC 36, B.S. Bajwa and Another Vs. State of Punjab and Others, (1998) 2 SCC 523, Shiba Shankar Mohapatra and Others Vs. State of Orissa and Others, (2010) 12 SCC 471 and Ajay Kumar Shukla Vs. Arvind Ram, Civil Appeal No. 5966 of 2021.

19. In addition, unexplained delay and laches in invoking Article 226 jurisdiction has repeatedly been held to be a serious impediment for grant of relief.

20. In State of Jammu and Kashmir Vs. R.K. Zalpuri and others (2015) 15 SCC 602, the Hon’ble Supreme Court has held as under:-

“27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim “Deo gratias” – ‘thanks to God’.

28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present.”

21. Similar exposition of law can be found in Union of India and others Vs. N. Murugesan and others (2022) 2 SCC 25, wherein it has been held as under:-

“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 circumstances. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would be one of estoppel. The question of prejudice is also an important issue to be taken note of by the Court.

LACHES:

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

22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the Court apart from the change in position in the interregnum Therefore, it would be unjustifiable for a Court of Equity to confer a remedy to 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.”

22. Recently, in Mrinmoy Maity Vs. Chhanda Koley and others, (2024) SCC Online SC 551, it has been held as under:

“11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 has held to the following effect:

“56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969]). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110], Durga Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC 185] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84]).

58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.”

12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corporation Ltd. v. K. Thangappan, (2006) 4 SCC 322 whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder:

“6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769]. Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329]. Sir Barnes had stated:

“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 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 of limitation, 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.”

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : AIR 1970 SC 470] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

9. 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. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”

13. Reiterating the aspect of delay and latches would disentitle the discretionary relief being granted, this Court in the case of Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 has held:

“16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.”

23. In light of above exposition of law as applicable to the facts of the instant case, the claim of the petitioner suffers from delay and laches and cannot be entertained. Accordingly, the petition is dismissed.

24. The petition is, accordingly, disposed of, so also the pending miscellaneous application, if any.

Order accordingly.

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