G.K. Misra, C.J.
1. In the cadre of lower division assistants of the office of the Chief Engineer, Roads and Buildings, Orissa. Sri Bishnu Charan Mohanty (Petitioner) was admittedly senior to Sarbasri G.N. Sarangi (O. P. No. 3) Sri A.C. Naik (O. P. No. 4), and Sri K.C. Patnaik (O. P. No. 5). Opposite parties 3, 4 and 5 were promoted to the posts of Grade II U. D. Assistants with effect from 16-8-63, 26-10-l964 and 4-1-1967 respectively to the Government (O. P. No. 1) against his supersession by opp. parties 3, 4 and 5. By letter dated 10-5-1969 (Annexure-1) the Under Secretary in Works and Transport Department wrote to the Chief Engineer (Roads and Buildings) as follows:--
'With reference to your letter No. 3989 dated 7-2-1969 on the subject noted above, I am directed to say that Government have been pleased to order that Sri A. Naik (serial 12) and Sri K.C. Patnaik (serial 17) of the list furnished in your letter under reference who have already got promotion to the Grade II U. D. Assistant may be reverted to L. D. Asstt. Sri S.N. Naik (serial 9) and Sri B.C. Mohanty (Serial 10) who are senior to Sri A. Naik and Sri K.C. Patnaik may be promoted to Grade II U. D. Assistant with effect from the date from which Sri A. Naik and Sri K.C. Patnaik reverted to L. D. Assistant.
The inter se seniority of those 10 assistants in the rank of U. D. Grade II Assistant may be the same as in the rank of L. D. Assistants irrespective of their date of Promotion to the rank of U. D. Grade II assistants. As regards creation of extra Grade II posts you are advised to give proper facts and figures and sufficient justification for such creation separately. You are also requested to implement this order immediately without postponing it on this ground or that'.
It is to be noted that Government in annexure-1 did not direct reversion of opp. party No. 3. As the Chief Engineer (O. P. No. 2) did not implement annexure-1, the petitioner and Sri Sachida-nanda Naik, another aggrieved lower division assistant filed O. J. C. No. 792 of 1969 (Sachidananda Naik and another v. Chief Engineer, Roads and Buildings). In that case this very Bench passed the following order (annexure-2) on 2nd April, 1970, substantive part of which is extracted hereunder:
'In Paragraph 7 of the Counter, it is admitted on behalf of the opposite parties that the Government allowed the representation of the petitioners, but that the matter is still pending consideration of the Government, and that steps are being taken to dispose it of as expeditiously as possible. It would, however, appear from annexure-F dated 10-6-1969 that the Chief Engineer, Roads and Buildings, was asked to implement that order immediately, without postponing it on this ground or that. Though this writ application was filed on 19-2-1969 there has been no compliance of the order till now. We are satisfied that the opposite parties 1 and 2 are unnecessarily delaying the matter.
We accordingly allow the writ application and direct the opp. parties 1 and 2 to fix the inter se seniority of the petitioners and opp. parties 3 to 5 within three months from today.
There would be no order as to costs.'
This direction in annexure-2 was given on the basis of the counter filed by opposite parties 1 and 2 in O. J. C. No. 792 of 1969 which had been filed on 28-10-1969. In between 28-10-1969 and 2-4-1970 when the judgment in the O. J. C. 792/69 was delivered, the Government had already rejected the representation filed by the petitioner and cancelled the order, annexure-1, as would appear from the letter annexure-A from the Government of Ori-ssa to the Chief Engineer. The material part of annexure-A dated 24th Nov.. 1969, is extracted hereunder:
'In continuation of this Department fetter No. 28629 dated 15-10-1969, I am directed to say that on further consideration of the promotion case of Sri B.C. Mohanty. L. D. Assistant, Government have been pleased to decide that the promotion given by the Chief Engineer was in accordance with the rules and normal practice followed. The Political and Services Department also hold the view that merit and suitability are the prime criteria in matters of Promotion though seniority cannot be given a go by. In view of the criteria for promotion stated above, Sri B. C. Mohanty was not found suitable and was eliminated on the basis of merit and suitability and Sri K.C. Patnaik was therefore rightly promoted.
The previous Government order issued in this Department letter No. 15418 dated 20-8-1968 and No. 10531 dated 10-5-1969 stand cancelled.'
2. As annexure-1 was cancelled, the petitioner along with another filed O. J. C. No. 709/70. Therein, the petitioner pleaded that though more than three months had elapsed from 2nd April. 1970 when annexure-2 was passed, the inter se seniority in Grade II of the petitioner vis-a-vis opp. parties 3 to 5 had not been fixed, and the petitioner had not been promoted as a Grade II U. D. Assistant. The prayer in that writ application was for issuing a writ of mandamus or any other appropriate writ to implement annexure-2.
In this O. J. C. on behalf of opposite parties 1 and 2 a memo, with an affidavit was filed on 12-8-1970 stating that the Inter se seniority of the petitioner and opposite parties 3 to 5 had been fixed on 10-8-1970 as per the direction of this Court. On 17-8-1970, on behalf of the petitioner, a memo was filed to the following effect:
'I am instructed that the opposite parties have fixed the inter se seniority of the petitioners as L. D. Assistant and not in U. D. Grade II Assistant. Therefore the opp. parties be directed to furnish the gradation list and state specifically about the above.
Sd/- S.N. Mitra.
Adv. for petitioner.
On 2-9-1970 on behalf of the opp. parties 1 and 2 the following memo, (an-nexure-3) was filed
'In this matter a memo, has been filed by the petitioner dated 17-8-1970 alleging that the opposite Party has not supplied the inter se seniority list of the petitioner in Grade II assistant.
In the previous writ O. J. C. No. 792/69 this opposite party was directed to fix the inter se seniority of the petitioner and accordingly a writ was issued from the Honourable High Court.
In accordance with the writ the opp. party has fixed the inter se seniority in the L. D. Assistant post in which the petitioner is continuing which has been filed in court on 12-8-1970. The petitioner has never been promoted to the post of Grade II Assistant. Hence the fixing of inter se seniority in Grade II of the petitioner does not arise.'
On 21-9-1970 a memo, to the following effect was filed on behalf of the petitioner.
O. J. C. No. 709/70
Sachidananda v. Chief Engineer (R and B) The aforesaid case has in the meantime become infructuous, so it may kindly be withdrawn.
Sd/- S.N. Mitra.
Adv. for the petitioner.'
On the basis of this memo. a Bench of this Court passed the following order on the very day.
'Mr. Raniit Mohanty. Advocate, states that this writ application has become infructuous and be permitted to be withdrawn. In this respect he files a memo. signed by Mr. S.N. Mitra, Advocate.
In view of the above submissions, this writ application is permitted to be withdrawn.'
The petitioner was promoted as Grade II assistant on 1-11-1970 (annexure-4 dated 18-12-1970). Though in the gradation list (annexure-7) for the lower division assistants, the petitioner had been shown senior to opp. parties 3 to 5 in the gradation list for grade II upper division assistants he has been shown junior to them (see annexure-5, the gradation list of the ministerial staff of the office of the Chief Engineer, Roads and Buildings, Orissa, as on 1-1-1970). Opposite party No. 2 intimated the petitioner by his letter, annexure-8 dated 6th January. 1970, that annexure-1 had been cancelled and that his representation had been rejected.
3. The petitioner's case is that in the cadre of lower division assistants he is senior to opposite parties 3 to 5 and they were promoted on different dates without taking into consideration his case for promotion. The writ application has been filed under Articles 226 and 227 of the Constitution for quashing annexure-A dated 24th November, 1969, which was communicated to the petitioner by annex-8, and for issuing a writ of mandamus directing opp. parties 1 and 2 to consider the case of the petitioner for promotion to Grade II upper Division as on dates when opp. parties 3 to 5 were promoted.
4. In the counter filed on behalf of the opp. parties 1 and 2, it is asserted that the petitioner's case was duly taken into consideration for promotion at all stages. He has no right to promotion though he is entitled to be considered for promotion.
Annexure-1 was not the final order and had not been communicated to the petitioner, and he cannot base any right thereon. The matter was subsequently re-examined and annexure-1 was cancelled by annexure-A, and the writ application is liable to be dismissed.
5. The following contentions were advanced by Mr. Dora on behalf of the petitioner:
(i) Annexure-1 finally determined the petitioner's right to be senior to opp. Parties 3 to 5, and opp. party No. 1 acted illegally in cancelling the same by annexure-A,
(ii) On the various dates when opp. parties 3 to 5 were promoted to Grade II upper division, the petitioner's case for promotion had not been taken into consideration. Those promotions are, therefore, liable to be quashed.
(iii) Opposite Parties 1 and 2 did not act in accordance with the direction given in Annexure-2, and a mandamus should be issued to them to act accordingly.
The learned Government Advocate advanced the following contentions.
(i) The petitioner's case had been considered for promotion and he was found unfit.
(ii) Annexure-1 did not finally determine the rights in respect of inter se seniority of the petitioner vis-a-vis opp. parties 3 to 5.
(iii) At any rate, annexure-2 the judgment in O. J. C. 792/69 constitutes res judicata in respect of the contention advanced on behalf of the petitioner that annexure-1 finally determined the rights of the parties.
(iv) Opposite parties 1 and 2 implemented annexure-2 in the manner it was feasible. As the petitioner's case for promotion had been considered at every stage and he was found unfit, all that opp. party No. 1 could do was to fix the petitioner's seniority amongst the lower division assistants. His seniority in upper division Grade II could not be fixed as he had not been promoted to that grade and was not found fit to be promoted.
(v) At any rate opposite parties 6 and 2 filed memos. in O. J. C. 709/70 clear-ly stating the aforesaid position, knowing it full well, the petitioner filed a memo. stating that the writ application had become infructuous. The final order passed by this Court in O. J. C. 709/70 allowing withdrawal of the writ application on the basis of the memo filed by the petitioner that the writ application had become infructuous constitutes res judicata in respect of the present writ application, and a further direction to consider the case of the petitioner for promotion to Grade II with retrospective effect is barred.
(vi) Opposite parties 3 and 4 were promoted to Grade II, upper division on 16-8-1963 and 24-10-1964 respectively. The representation of the petitioner was filed on 19-4-1967. In the first case it was clearly after expiry of three years, and in the second it was about two and a half years after. The writ application is liable to be dismissed as against opp. Parties 3 and 4 on account of laches and delay on the part of the petitioner.
6. It was very strenuously contended by Mr. Dora that annexure-1 in which Government decided that opposite parties 4 and 5 would be reverted as lower division assistants and the petitioner would be promoted to upper division Grade II with effect from the date Sri K.C. Patnaik (opp. party No. 5) reverted, finally determined the rights of the parties.
The learned Government Advocate, on the other hand, contends that by an-nexure-1 the Government had taken no final decision which was taken in annexure-A, wherein it was held that Sri B.C. Mohanty (the petitioner) was not suitable for promotion.
This controversy necessitates an examination of the question as to when a government's order becomes final.
7. Article 163(3) of the Constitution lays down that the question whether any, and if so what advice was tendered by Ministers to the Government shall not be inquired into in any Court: that means, the advice of the Minister to the Governor cannot be tendered in any evidence.
Article 166 lays down that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument, which is as authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
It would be apparent from the aforesaid Provisions that until a final decision is reached by the Governor on the advice of the Council of Ministers, and until the same is communicated to the party concerned by issuing an order in accordance with Article 166 of the Constitution, the advice of the Council of Ministers cannot be acted upon as before that it does not attain any finality. Until such finality is reached it is open to the Council of Ministers to consider the matter over and over again. The earlier conclusions reached are merely provisional in character (See AIR 1937 Orissa 263, Ramkrishna Deo v. Collector, Koraput and AIR 1961 SC 493 State of Punjab v. S.S. Sinsh.)
It would be enough to extract the following passage from AIR 1963 SC 395Para 10 Bachhittar Singh v. State of Punjab.
'We may further observe that constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh is to act with aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion, which of them can be regarded as the 'order' of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned.'
Reliance is placed by Mr. Dora on the following passage in 1972 Serv LR 606 (J. & K.), Inspector General of Police. Jammu and Kashmir v. Narinder Singh.
'But once the order, original or modified is sent out or in other words Put into course of transmission to the concerned, the Government loses control over the matter and it is here that the order becomes complete and effective. For an order of the Government to become effective, the crux therefore is that it should have been put into the course of transmission to the concerned so as to be out of the control of the Government. It does not matter what course such transmission takes. It may be by hand, by post or by some such agency or through a subordinate office of the Government. In each case, however, the matter goes out of the control of the Government as soon as it leaves the premises of the Secretariat to which it pertains. Merely because the order is sometime routed through a subordinate office, it cannot be said that the matter is still under the control of the Government as long as it does not leave such subordinate office any such view is likely to lead to anomalous and absurd results.'
We find nothing in this passage which supports the contention that annexure-1 was not a provisional but the final order. Until such an order reaches the person concerned, it does not attain any finality. It is open to Government even to recall a letter sent to another office before it reaches the person concerned. When, however, the order is communicated to the person concerned, the order becomes final.
Annexure-1 was never communicated to the petitioner. After it was received by the Chief Engineer, he made further communication to the Government, and ultimately annexure-1 was cancelled as would appear from annexure-6. We are unable to accept the contention that a writ of mandamus should be issued to implement annexure-1 which was merely of a provisional character.
8. Assuming that annexure-1 was a final order, is the petitioner barred by res judicata in relying upon the same as determining- the rights of the parties finally?
It is not disputed before us that reliance was not placed on annexure-1 in O. J. C. 792/69 as finally determining the rights of the petitioner vis-a-vis opposite parties 3 to 5. If such a contention had been pressed and accepted by us then the writ of mandamus issued by us would have been altogether of a different nature, in which case we would have directed opposite parties 1 and 2 to implement annexure-1. The Bench, however, did not give such a direction as opposite parties 1 and 2 filed a counter saying that annexure-1 was still pending consideration of the Government. The Bench, therefore, did not accept annexure-1 as finally determining the rights of the parties. If annexure-1 had finally determined the inter se seniority in Grade II, there was no purpose in this Court giving a direction that their inter se seniority would be de-termined by the opp. parties within three months from the date of passing of the order. We accordingly hold that in O. J. C. 792/69 the question whether annexure-1 finally determined the inter se seniority of the petitioner was directly in issue, and was decided against him. Even assuming that it was not directly in issue, still it was constructively in issue and the petitioner might and ought to have that point as a ground of attack in that writ application. As the petitioner did not expressly raise the issue, the same cannot be raised in this writ petition and is barred by the principle of constructive res judicata.
Mr. Dora at one stage contended that the principles of constructive res judicata have no application to writ applications. He, however, did not pursue the point seriously. That the principle of constructive res judicata is applicable to writ applications is no longer res integra. The matter is concluded by a series of Supreme Court decisions. The question has been fully discussed by a Bench of this Court in 1973 (1) Cut WR 63 Biharilal v. Sales Tax Officer where it was held that the principle of constructive res judicata is applicable to writ proceedings. They Placed reliance on AIR 1961 SC 1457. Dar-yao v. State of U. P., AIR 1965 SC 1150 Devilal Modi v. Sales Tax Officer. Rat-lam and AIR 1968 SC 1370. Union of India v. Nanak Singh. It would be superfluous to traverse the same ground again. It would be sufficient to say that we find no substance in the contention of Mr. Dora.
9. On the aforesaid analysis it cannot be contended in this writ application that annexure-1 finally determined the inter se seniority. The same is barred by the principle of constructive res judicata.
10. It was then contended by Mr. Dora that even if annexure-1 cannot be relied upon to finally determine the inter se seniority by the judgment of this Court, annexure-2, opp. Parties 1 and 2 should have determined the same within three months.
It must be pointed out that by annexure-A Government had already decided that the petitioner was not entitled to promotion on the basis of merit and suitability. The Government took a clear stand in O. J. C. 709/70 that the petitioner was a lower division assistant, was not entitled to promotion on the basis of merit and suitability, and his seniority in Gr. II, vis-a-vis opposite parties 3 to 5 could not be determined. Despite this clear stand taken by opposite parties 1 and 2 the petitioner filed a memo- in O. J. C. 709/70 that that writ application had become infructuous. Truly, the writ application had not become infructuous, and the petitioner should have pressed for determination on merits whether hp was not entitled to promotion and whether his case had been rejected after due consideration on its merits. A question arises whether the order of this Court dated 21-9-l'970 allowing withdrawal of the O. J. C. No. 709/70 constitutes res judicata in respect of the prayer in this writ application that the case of the petitioner was not taken into consideration at the tuna of promotion of opposite parties 3 to 5.
If the writ application had been allowed to be withdrawn without going into its merits, the decision certainly would not have constituted res judicata. But the facts and circumstances in which O. J. C. 709/70 was withdrawn are peculiar. The stand taken by the Government now is that the petitioner's case was considered on merits on each occasion when promotion to Grade II was given and the fact that as he still continued as a lower division assistant his seniority in Grade II could not be determined was clearly brought to the notice of the petitioner by memo, in O. J. C. No. 709/70 itself. If after knowledge of the stand of opp. parties 1 and 2, the petitioner said that the writ application had become infructuous, it means that the petitioner was satisfied that his case was considered on merits on each occasion at the time of promotion to Grade II and he had no merit in his case. The order of this Court allowing withdrawal of O. J. C. 709/70 on the basis of the memo of the petitioner's counsel that the writ application had become infructuous Is a decision on merit. Even though the writ application was permitted to be withdrawn the decision constitutes res judicata in respect of the identical prayer in the present writ petition. The order of this Court dated 21-9-70 allowing the withdrawal is a speaking order when read with the memo. to which it refers. (See AIR 1961 SC 1457).
11. The present writ application Is also liable to be dismissed on the ground that it is barred by res judicata on account of the order passed by this Court in O. J. C. 709/70.
12. The learned Government Advocate advanced a contention that the writ application so far as opposite parties 3 and 4 are concerned, is liable to be dismissed on grounds of laches and delay. Opposite party No. 3 was promoted on 16-8-1963 and the petitioner slept over and filed a representation against it on 19-4-1967 more than three years after. Opposite party No. 4 was Promoted on 26-10-1964 and the representation was filed on 19-4-1967 about two and half years after. The question for consideration is whether this Court should interfere with the promotion of opposite parties 3 and 4 when the petitioner was not vigilant and came after a long delay.
13. It was very strenuously con-tended by Mr. Dora that when constitutional rights are involved, constitutional protection should not be refused merely because there has been delay or laches on the part of the petitioner. To appreciate this contention it would be appropriate to examine when delay or laches defeat equity and this Court should not exercise its discretion in issuing a writ. As this Question is being raised from time to time, we propose to deal with the matter by examining leading authorities on the point.
The leading authority on the point is a Constitution Bench decision reported in AIR 1967 SC 1450, Moon Mills Ltd. v. Industrial Court, Bombay. Reliance was placed by their Lordships on the following passage in (1874) 5 P. C. 221 at P. 239; Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewell and John Kemp.
'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, vet 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 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.'
In AIR 1969 SC 329. Maharashtra State Road Transport Corpn. v. Balwant Regular Motor Service their Lordships observed that a writ of certiorari would not be granted in a case where 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 adverse party. The principle was, to a great extent, similar to though not identical with the exercise of discretion in the Court of Chancery. They referred to the aforesaid passage extracted.
In AIR 1970 SC 470, Rabindra Nath Bose v. Union of India a Constitution Bench laid down that it could not have been the intention that the Supreme Court would so into stale demands after a lapse of years and that though Article 32 is it-self a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that the Supreme Court should discard all principles and grant relief in petitions filed after inordinate delay.
The petitioners in that case attempted to explain the delay by saving that the representations were being received by the Government all the time. This contention was reiected by the following observations:
'But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation the making of another representation on similar lines would not enable the petitioners to explain the dealy.'
In AIR 1970 SC 898, Trilokchand Motichand v. H.B. Munshi the majority view of the Constitution Bench was expressed thus:
'Para 10. If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of six months has been provided statutorily, but that could not be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold that the party disentitled to invoke the extraordinary jurisdiction.
11. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article, but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose.'
In 1970 (1) Cut WR 349, Radha Charan Kar v. State of Orissa a Bench of this Court examined the identical question in paragraph 12. They referred to some of the aforesaid Supreme Court decisions and dismissed the writ application on the ground of laches and delay. The delay to fixation of seniority in that case was questioned after eleven years and no satisfactory explanation had been given for the delay.
In ILR (1971) Cut 408, Manoranian Gupta v. State of Orissa a Bench of this Court placed reliance on the following passage in AIR 1964 SC 1006. State of Madhya pradesh v. Bhailal Bhai:
'Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us, however, that the maximum period fixed by the Legislature as the time within which relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which the delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remeby. But where the dealy is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.'
In that case the writ application was rejected on the ground of delay as it was filed three years after the accrual of the cause of action.
In (1971) Cut WR 443, Kishori Charan Mohanty v. State of Orissa another Bench of this Court examined the very question and made the following observation in paragraph 8.
'There is no rule any appeal or representation is to be made against an order of retirement. At any rate, when the first representation was not responded to, it was the duty of the petitioner to seek relief without delay. He cannot be allowed to take advantage of his own laches by sitting at home without doing any official work and then at the end of five years claim to be continuing in service and ask for arrears of pay for five years. Even if he has filed a civil suit for arrears of pay, the same would be barred after three years. This is an appropriate case in which the writ application is not to be entertained after such a long delay.'
The same view was taken in AIR 1972 SC 2060. Kamini Kumar v. State of West Bengal.
14. The various considerations to be kept in mind while determining whether a writ application is liable to be dismissed on account of laches and delay may be summed up on an analysis of the principles enunciated in the aforesaid decisions as follows:
(i) The Limitation Act has no application to writ petitions. Where, however, a suit for identical relief would be barred by the law of limitation, the Court would ordinarily refuse to exercise discretion to grant relief under Article 226.
(ii) Even if a suit for the same relief is not barred by limitation under the limitation Act, vet the High Court may refuse to issue a writ, if otherwise the delay is not explainable by satisfactory reasons.
(iii) Two important circumstances to be borne in mind in all 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.
(iv) Where by the conduct of the party, the delay might fairly be regarded as equivalent to a waiver of the remedy the relief under Article 226 would be refused.
(v) Even if the conduct or act is not equivalent to a waiver, if the neglect of the petitioner Put the opposite party in a situation in which it would not be reasonable to place him if the remedy is afterwards granted, the relief under Article 226 should be refused on account of delay and laches.
(vi) Utmost expedition is the essence for a claim under Article 226, and
(vii) No hard and fast rule can be laid down. Each case is to be determined on its own facts and circumstances.
15. Applying the aforesaid tests. It is clear that so far as opposite party No. 3 is concerned, the petitioner filed his representation challenging the supersession three years after. A suit for setting aside such a supersession would be barred under the Limitation Act. No explanation, much less satisfactory has been given as to why the petitioner did not make the representation with the utmost expedition.
Similarly, the representation against the petitioner's supersession by opposite party No. 4 was filed after two and a half years of the accrual of the cause of action. Even thoush a suit for the same relief is not barred by limitation the petitioner has not given any satisfactory explanation for his inaction. If the petitioner's claim is accepted, opp. partv No. 4 has to be reverted and Government has to create an additional post in upper division Grade II for a period of two and a half vears to accommodate the petitioner, as OPP. party No. 4 cannot be deprived of the emoluments he received while working in the higher grade by the promotion given to him by the Government. If the representation had been made in appropriate tune without delay, the same could be attended to by the competent authority and it would have involved no additional financial implication for the Government and no difficulty would have been caused in reverting opp. party No. 4 who would have worked in the upper division only for a short time.
There was no delay in the making of the representation against the supersession by opp. party No. 5.
The writ application against opposite parties 3 and 4 is liable to be dismissed on account of delay and laches, even assuming that the case of the petitioner for promotion had not been taken into consideration when he was superseded by opposite parties 3 and 4. It is unnecessary to examine the plethora of authorities cited by Mr. Dora on the question of delay and laches. All those decisions can be explained by the aforesaid principles and if any one of them makes a departure, the same would be contrary to law.
16. We now take UP the question whether in fact the case of the petitioner was taken into consideration on the various dates when opp. parties 3. 4 and 5 were promoted by supreseding the petitioner.
At the request of Mr. Dora, we called upon the learned Government Advocate to produce the entire file before us. It is unnecessary to refer to the voluminous discussion made on different occasions. It would be sufficient to extract the relevant portions of the notes recorded by Sri C.B. Jain, Secretary (Works) on 6/19th November, 1969:--
'The question of deciding the representation of Shri S.N. Naik and Shri B.C. Mohanty regarding their promotion was discussed todav with the Chief Engineer. R and B. The Deputy Secretary, Works and Sri J.K. Sahu. ex-P. A. to the Chief Engineer was also present. The C. C. Rs (Confidential Character Rolls) of Shri G.N. Sharangi was unfortunately not available. The C. Cs. Rs. of other persons were seen. Other relevant records in the relevant files of the Chief Engineer were also gone through.
The position appears to be as follows:--
There are following 9 L. D. Assistants in the office of the Chief Engineer.
1. Sri Sachidananda Naik.
2. Sri Bishnu Charan Mohanty.
3. Sri Gajendranath Sarangi.
4. Sri Arjun Naik.
5. Sri Gantayat Sahu.
6. Sri Sailendra Narayan Mohanty.
7. Sri Harihar Shahu.
8. Sri Lakshmidhar Paikray.
9. Sri Kishore Chandra Patnaik.
In the year 1963 Sri G.N. Sharangi, S1. 3 above was promoted. The relevant orders passed by Sri P.C. Das, the then Chief Engineer, R and B are at P. 25-26/N. of file No. E. III-13/63 of Chief Engineer's office. A list of all the eligible persons including Sri S.N. Naik and Shri B.C. Mohanty Sls. 1 and 2 was put UP to Sri P.C. Das and after a consideration of all the relevant factors, the then Chief Engineer decided that Sri G.N. Sharangi should be promoted. Obviously, on a comparative assessment, the Chief Engineer came to the conclusion that Sri G.N. Sharangi was more suitable than Sri S.N. Naik and Sri B.C. Mohanty.
There can be no objection taken at this stage.
2. Again in the year 1964 Shri Arjun Naik S1. 4 above was promoted in supersession of Shri S.N. Naik and Shri B.C. Mohanty. Here again, the entire list of the eligible L. D. Assistants including Shri S.N. Naik and Shri B.C. Mohanty was put up to Shri S.S. Behera the then Chief Engineer, and his orders are at p. 52/N of Chief Engineer's file No. III E-13/63. Shri S.S. Behera the then Chief Engineer decided that Shri A. Naik be promoted. Obviously he came to the conclusion that Shri A. Naik was more suitable than Shri S.N. Naik and Shri B.C. Mohanty.
So far Shri S.N. Naik and Shri B.C. Mohanty also had no dispute with the decision taken in 1963 and 1964 because they did not file any representation.
In the year 1967 Shri K.C. Patnaik Sl. 9 was Promoted. The relevant orders are at p. 11/N' of Chief Engineer's file No. E-III-E-18/68 where the orders have been passed by Shri S.S. Behera, the then Chief Engineer. Here Shri Behera has clearly recorded that Shri K.C. Patnaik was more suitable than Shri K.C. Mohantv. Shri K.C. Patnaik was accordingly promoted. Shri B.C. Mohanty, therefore, can have no grounds of any grievance.
* * ** ** Only Shri B. C. Mohantv and Shri K.C. Patnaik were considered since both of them came from the Circle cadre and of these two. Shri K.C. Patnaik was considered better.
As per the principle that governs promotions at this level, promotions are to be given on the basis of suitability with due regard to seniority. Here promotions given on all the three occasions namely, 1963. 1964 and 1967 Sarbasri G.N. Sarangi A. Naik and K.C. Patnaik were consider-ed better than Sri S.N. Naik and Shri B.C. Mohanty.
According to the orders issued by the Home Department in their memo No. 430 (53) Reforms dated 26-5-1949, the principle for promotion is that none shall be promoted who is not on the basis of his record and in the opinion of his Departmental head fit for promotion, and of those who are fit for promotion only the fittest shall be promoted to any particular vacancy. Obviously the Chief Engineer while making promotions on the above mentioned three occasions was guided by the above mentioned principle in the Circular. There seems to be no basis to revise the orders passed by the Chief Engineer regarding promotions of those people and Government orders passed at P. 44/11 and P. 69/N may be accordingly modified and earlier orders issued to the Chief Engineer at p. 92C and p. 135C may be cancelled. He may be told that the representations made by Shri S.N. Naik and Shri B.C. Mohanty may be rejected.
XX XX XX Sd. C.B. Jain
6th November, 1969.
The aforesaid discussion made by the Secretary (Works) illumines the position that the case of the petitioner that he was not considered for promotion at the time opposite parties 3 to 5 were promoted is wholly baseless.
17. For the reasons given above, the writ application has no merit and is dismissed; but in the circumstances there would be no order as to costs.
18. I agree.