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 3 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 4 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. 5 10.2. 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 6 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 9 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. 10 605/2006 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:- 15 '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, 17 that 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 18 settled 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 22 would 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 23 respondent 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, 26 Vol. 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