Delay & Laches Vital In Service Matters, Can Be Seen As Acquiescence: Supreme Court

The Supreme Court, while rejecting the belated service-related claim made by one Bichitrananda Behera pertaining to the post of Physical Education Trainer, held that ground of delay and laches in such cases amounts to acquiescence which means an implied and reluctant consent to an act.

The Court also noted that Behera, in the period of over 12 years had not moved before any forum, be it a Court of Law or a Tribunal or an Authority asserting his claims qua the solitary post of PET in the School in question.

In view of this, the Court held:

“On an overall circumspection, thus, in the present case the Respondent No.5(Behera) should have been non-suited on the ground of delay and laches, which especially in service matters, has been held consistently to be vital, juxtaposed with the sign of acquiescence.”

Reliance was placed upon Union of India v. N Murugesan, (2022) 2 SCC 25 wherein with respect to Acquiescence, it was observed:

“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.”

The present appeal assails the Judgment dated 18.01.2017 passed by the High Court of Orissa at Cuttack wherein it dismissed the appeal filed by one Bichitrananda Behera against judgment of the State Education Tribunal, Orissa directing the State to approve the appointment of one Pramod Kumar Mohanty/ Respondent No.5 on the post of Physical Education Trainer (PET) in the Gram Panchayat School, Sailo at Nadhana (School) and release of block grant in his favour with effect from 01.01.2004.

Brief Facts

After the constitution of first stop management committee, in the aforementioned School, as a as a stop gap arrangement, the Committee was reconstituted by the Inspector of Schools, through its order dated 15.12.1992. However, the Inspector of Schools on 28.12.1992 modified the composition of the Managing Committee by substituting some names.

Pursuant to this, before the High Court, the approval given to the Managing Committee constituted on 28.12.1992 was challenged by the Secretary of the Managing Committee constituted on 15.12.1992. The High Court, by its interim order dated 11.01.1993, stayed the operation of the order dated 28.12.1992.

At this stage, it must be noted that the Managing Committee constituted on 15.12.1992 appointed the appellant on the post of PET on 14.05.1994.

After around two years, the interim order of the High Court was vacated on 18.12.1995, as term of the Managing Committee approved on 15.12.1992 stood expired. Later, when applications were invited to receive block grant(s) under the Grant-in-Aid Order, 2004 with effect from 01.01.2004, the Inspector of Schools passed an order on 02.04.2005 approving the appointment of teaching and non-teaching staff, where the name of Bichitrananda Behera/ appellant found place and he was held entitled to receive the Block Grant.

Consequently, Pramod Kumar Mohanty/ Respondent No.5 challenged the approval order of the appellant before the Tribunal. The Respondent No.5 claimed to be continuing as the PET in the school in question w.e.f. 10.01.1993 on the basis of Resolution dated 07.01.1993 issued by the Managing Committee constituted on 28.12.1992.

The Tribunal vide judgment dated 15.11.2008 quashed the order dated 02.04.2005 by which approval was given to the service of the appellant and further directed approval of the appointment of Respondent No.5 and for release of block grant in his favour w.e.f. 01.01.2004. The challenge by the instant appellant to the same before the High Court came to be rejected by the Impugned Judgment.

Court's Observations

Appointment of Appellant and Respondent No. 5

To begin with, the Court while addressing the facts of the present case, noted that the appellant was appointed by the Managing Committee constituted on 15.12.1992 and given appointment on 14.05.1994 during the time when a stay order granted by the High Court in favour of the Managing Committee constituted on 15.12.1992 was continuing i.e., since 11.01.1993.

“Thus, the appointment made by the said Managing Committee (constituted on 15.12.1992) of the appellant cannot be labelled illegal per se nor termed void ab initio.,” the Court opined.

Further, on the legal aspect, the Court also took into consideration that the Managing Committee constituted on 15.12.1992 continued for its full term by virtue of the interim and final order of the High Court, the appellant continued to discharge the duties on the post right since his appointment on 14.05.1994. The same is also backed up by the relevant documents.

Per Contra, the Court observed that from the record it transpires that the then incumbent, namely Kapil Sasmal, who was appointed as PET in the School, continued till he was terminated by the Managing Committee for absence. Thus, in the absence of the post being vacant on 07.01.1993, the appointment of Respondent No.5 on the said single post held by Mr. Kapil Sasmal was made. However, as per the observations made by the Court, Respondent No.5 could not have been appointed by way of the resolution dated 07.01.1993 followed by the appointment letter, which came to be issued on 10.01.1993.

Imperatively, it was also found by the competent authorities that Respondent No.5 had work in another school from 04.01.1995 to 18.08.2002.

Apart from this, the State had also supported the appointment of the appellant and his continuance in service as also the Respondent No.5 having worked during the said period in another school.

Findings Pertaining To The Managing Committee Constituted On 15.12.1992

The Court observed that from 11.01.1993 till 14.12.1995, the Committee constituted on 15.12.1992 was functioning in terms of the interim order of the High Court.

“It is also noteworthy that the High Court only took a view with regard to reconstitution of the Managing Committee and even in its final order dated 23.07.1999, there is no whisper that any/all action(s) taken by the Managing Committee constituted on 15.12.1992, even though in terms of the interim order of the High Court, would lose their efficacy and/or validity.”

Furthermore, it was noted that the Respondent No.5, in the period of over 12 years (from 07.01.1993 to 04.05.2005), had not moved before any forum, be it a Court of Law or a Tribunal or an Authority asserting his claims qua the solitary post of PET in the School in question.

Court's Verdict

To support its findings, the Court derived its strength from several judgments including Union of India v. Tarsem Singh, (2008) 8 SCC 648, wherein it was held: “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).”

Further the decision of Chairman, State Bank of India v M J James, (2022) 2 SCC 301 was also cited . This judgment clarifies distinction between “acquiescence” and “delay and laches”. It opined:

“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.”

In the view of these facts and circumstances, the Court entitled the appellant to continue on the post of PET in the School, with service counted from 14.05.1994. As a sequel thereto, all consequential benefits, to be determined as per records, shall flow.

However, for complete justice and given the time taken by the adjudicatory process, the Court, in exercise of power under Article 142 of the Constitution of India, directed the State of Odisha to grant a lump-sum of INR 3 lakhs to Respondent No.5.

“Further, if any monies were paid to Respondent No.5, the same shall also not be recovered. This paragraph shall not constitute precedent.,” the Court added.

Case Title: Bichitrananda Behera V. State Of Orissa And Others, Special Leave Petition (Civil) No.16238 Of 2017

Citation : 2023 LiveLaw (SC) 883

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