BICHITRANANDA BEHERAversusSTATE OF ORISSA AND OTHERS

                 [2023] 15 S.C.R. 404 : 2023 INSC 902



                            CASE DETAILS

                     BICHITRANANDA BEHERA
                                     v.
                  STATE OF ORISSA AND OTHERS
                     (Civil Appeal No. 6664 of 2023)
                           OCTOBER 11, 2023
   [VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]
                             HEADNOTES
     Issue for consideration: High Court if justified in dismissing the
appeal filed by the appellant against the judgment of State Education Tribunal
whereby the State was directed to approve the appointment of Respondent
No.5 on the post of Physical Education Trainer (PET) in the school in
question and release of block grant in his favour.
     Service Law – Delay/Laches – Solitary post of PET in the
school in question – Respondent No.5 challenged the approval order
dtd. 02.04.2005 of the appellant before the Tribunal, claiming to be
continuing as the PET in the school in question w.e.f. 10.01.1993 on
the basis of resolution dtd. 07.01.1993 of the Managing Committee
constituted on 28.12.1992 – Claim, if belated:
      Held: 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 said
Managing Committee was continuing i.e., since 11.01.1993 – Thus, the
appointment of the appellant made by the aforesaid Managing Committee
cannot be labelled illegal per se nor termed void ab initio – Further, the
then incumbent who was appointed as PET in the School, continued till
15.10.1993, when he was terminated – Thus, in the absence of the post being
vacant on 07.01.1993, Respondent No.5 could not have been appointed by
way of the resolution dtd.07.01.1993 followed by the appointment letter
issued on 10.01.1993 – Also, when the interim order dtd.11.01.1993 was
vacated, the term of the Managing Committee approved on 15.12.1992 was
already over – Since the Managing Committee constituted on 15.12.1992
                                   404
  BICHITRANANDA BEHERA v. STATE OF ORISSA AND                           405
                  OTHERS

continued for its full term by virtue of the interim order of the High Court
and even in the final order disposing of the case, no adverse comment was
made on actions taken by the said Managing Committee, coupled with
the fact that the appellant continued to discharge the duties on the post
right since his appointment, which is documented and verified, with him
having been sent on election duty thrice, are sufficient pointers that the
appellant had actually worked and continued on the post – Also, competent
authorities came to a finding about the factum of Respondent No.5 having
worked in another School during the period in question– Furthermore, in
the period of over 12 years (from 07.01.1993 to 04.05.2005), Respondent
No.5 had not moved before any forum, asserting his claims qua the solitary
post of PET in the School in question – Respondent No.5 should have been
non-suited on the ground of delay and laches, which especially in service
matters is vital, juxtaposed with the sign of acquiescence – Judgments
of the High Court and the Tribunal set aside – Appellant entitled to
continuance on the post of PET in the School, with service counted from
14.05.1994 with all consequential benefits – However, State of Odisha
to grant a lump-sum of INR 3 lakhs to Respondent No.5, this shall not
constitute a precedent – Orissa Education Act, 1969 – s.24-B - Grant-in-
Aid Order, 2004 – Constitution of India – Article 142 – Acquiescence.
[Paras 15-18, 20, 22, 23 and 25]

       LIST OF CITATIONS AND OTHER REFERENCES

     Bibekananda Das v. State of Orissa 1997 (II) OLR 122 – held
inapplicable.
     Union of India v Tarsem Singh (2008) 8 SCC 648 : [2008] 12 SCR
104; Union of India v. N Murugesan (2022) 2 SCC 25; Chairman, State
Bank of India v. M J James (2022) 2 SCC 301 – relied on.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6664 of 2023.
     From the Judgment and Order dated 18.01.2017 of the High Court of
Orissa at Cuttack in FAO No. 497 of 2008.
406            SUPREME COURT REPORTS                       [2023] 15 S.C.R.


       Appearances:
    Soumyajit Pani, Aishwary Bajpai, Vinodh Kanna B., Advs. for the
Appellant.
     Bharat Sangal, Sr. Adv., Nagarkatti Kartik Uday, Ms. Babita Kushwaha,
Ms. Manjula Gupta, Prem Sunder Jha, M.D. Pandey, Niranjan Sahu, Sibo
Sankar Mishra, Mrs. Prabhati Nayak, Debabrata Dash, Ms. Apoorva Sharma,
Raj Kumar Mehta, Ms. Himanshi Andley, Advs. for the Respondents.

        JUDGMENT / ORDER OF THE SUPREME COURT

                                 JUDGMENT
       AHSANUDDIN AMANULLAH, J.
         Heard learned counsel for the parties.
       2. Leave granted.
      3. The present appeal is directed against the Judgment dated
18.01.2017 in F.A.O. No.497 of 2008 (hereinafter referred to as the
“Impugned Judgment”) passed by the High Court of Orissa at Cuttack
(hereinafter referred to as the “High Court”) whereby the appeal filed by
the appellant against judgment dated 15.11.2008 in GIA Case No.39 of
2005 of the State Education Tribunal, Orissa (hereinafter referred to as the
“Tribunal”) directing the Respondents No.1 & 2 to approve the appointment
of Respondent No.5 on the post of Physical Education Trainer (hereinafter
referred to as “PET”) in the Gram Panchayat School, Sailo at Nadhana
(hereinafter referred to as the “School”), District Puri and release of block
grant in his favour with effect from1 01.01.2004, has been dismissed.
       THE FACTUAL PRISM:
     4. The School was established in the year 1987 and was also
recognized. On 29.11.1990, the first Managing Committee of the School
was constituted and as a stop-gap arrangement, a retired government
school Physical Education Trainer was appointed on the post of PET on
18.05.1991. The Managing Committee was reconstituted by the Inspector


1     Hereinafter shortened and referred to as “w.e.f.”.
  BICHITRANANDA BEHERA v. STATE OF ORISSA AND                       407
      OTHERS [AHSANUDDIN AMANULLAH, J.]

of Schools, Puri Circle, Puri vide 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. 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,
in O.J.C. No.80 of 1993 before the High Court, which by interim order
dated 11.01.1993, stayed the operation of the order dated 28.12.1992
reconstituting the Managing Committee. The Managing Committee
constituted on 15.12.1992 appointed the appellant on the post of PET
on 14.05.1994. However, the interim order dated 11.01.1993 of the High
Court was vacated on 18.12.1995, as term of the Managing Committee
approved on 15.12.1992 stood expired. When on the recommendation of
the proposal submitted by the outgoing Managing Committee, the new
Managing Committee was reconstituted and approved on 03.07.1996,
the same was again challenged in O.J.C. No.6687 of 1996. By a common
order dated 23.07.1999 in both the Writ Petitions (O.J.Cs. No.80 of 1993
and 6687 of 1996), the High Court quashed the order of approval dated
03.07.1996 and directed the Inspector of Schools to remain in-charge
of the management of the School. 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 appellant found place and he was held entitled to receive
the Block Grant.
      5. This led to Respondent No.5 filing GIA Case No.39 of 2005 under
Section 24-B of the Orissa Education Act, 1969 challenging 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.
408          SUPREME COURT REPORTS                       [2023] 15 S.C.R.


      SUBMISSIONS BY THE APPELLANT:
     6. Learned counsel for the appellant submitted that the advertisement
dated 20.04.1994 was issued by the Managing Committee constituted on
15.12.1992 much after stay was granted in its favour, and interviews were
conducted on 11.05.1994 for the PET and 3 other posts.
     7. It was submitted that the appellant, along with three others, was
appointed on 14.05.1994 and was still working, being duly qualified and
rendering service uninterruptedly.
      8. Learned counsel submitted that though the claim of the Respondent
No.5 is based on his appointment letter and joining letter of the year 1993,
but he has failed to produce any document to establish his continuity in
service from 1993 to 2005 or even thereafter. It was contended that the
appointment letter and resolution of the Managing Committee in favour
of the Respondent No.5 was void and fabricated as Respondent No.5 was
appointed within 14 days of the constitution of the Managing Committee
on 28.12.1992 i.e., on 10.01.1993 which is one day before the stay order
of the High Court dated 11.01.1993. It was submitted that despite the
dates clearly indicating a sham process of appointment, the Tribunal and
the High Court granted relief to the Respondent No.5 only on the basis of
the aforesaid two documents without any document/record showing that
the Respondent No.5 actually performed his duties in the School so as
to entitle his service being approved, which is a condition precedent for
salary in the shape of grant-in-aid/block grant. It was contended that after
due verification/perusal of the Managing Committee’s Resolution Book
and Staff Attendance Register from 1994 to 2005 and other material(s) like
Inspection Report dated 11.07.2006, it was established that Respondent
No.5 was appointed and also worked, as a teacher in another school viz.
the Sri Thakur Nigamananda High School, Terundia.
      9. Learned counsel submitted that facts have been duly verified from
the records of advertisement, resolution, appointment letter, attendance
register and renewal register pertaining to the appellant by the competent
authority; and in this background, he was approved by the order dated
02.04.2005 as eligible to receive block grant.
  BICHITRANANDA BEHERA v. STATE OF ORISSA AND                             409
      OTHERS [AHSANUDDIN AMANULLAH, J.]

      10. Learned counsel further submitted that the Inspector of Schools in
his counter affidavit has clearly stated that there is no other appointee and
also no record available, either in the School or in the Inspectorate, relating
to the appointment of Respondent No.5. Thus, it was contended that the
Tribunal has not given any finding with regard to the records relating to
the appointment of Respondent No.5 and the High Court has also clearly
erred in ignoring the relevant factual matrix as disclosed in the concerned
contemporaneous records duly verified by the competent authority of
the State. It was further contended that the two fora below have wrongly
interpreted the term ‘Competent Management’ in the order dated 23.07.1999,
which was only in reference to sending of a proposal with regard to the
future reconstitution of the Managing Committee and has no relevance on
the issue of appointment having been made by the Managing Committee
constituted on 15.12.1992, which in no way can be said to be incompetent
or illegal even on the principle of ‘de facto doctrine’, more so, when the
Managing Committee constituted on 15.12.1992 had managed the school
for six years and the High Court has not invalidated any action or decision
taken by it during the said period.
     11. It was contended that even on merit, on the day the Respondent
No.5 is said to have been appointed i.e., 10.01.1993, he did not possess BPED
or CPED qualification and thus, could not have been appointed. He further
submitted that the recommendation for renewal in favour of the appellant
was sent every year as per the requirement and he was also assigned election
duty on three occasions.
     SUBMISSIONS OF THE STATE:
      12. Learned counsel for the State has filed the counter-affidavit. The
State has supported the case put forth by the appellant.
     SUBMISSIONS ON BEHALF OF RESPONDENT No.5:
      13. Learned counsel for Respondent No.5, per contra, submitted
that the High Court in its order dated 23.07.1999 has noted that the
Managing Committee constituted on 28.12.1992 was the only competent
Managing Committee which has appointed the Respondent No.5, hence
the same is valid. It was submitted that the appellant, having been
appointed by the Managing Committee constituted on 15.12.1992, could
410          SUPREME COURT REPORTS                       [2023] 15 S.C.R.


not have been so appointed without lawful termination of the service
of Respondent No.5 and most importantly, the order dated 23.07.1999,
having not been challenged, had attained finality. With regard to the
qualification of Respondent No.5 i.e., his non-fulfilment of the criteria
of appointment on 10.01.1993, learned counsel submitted that, later,
on 03.06.1996, Respondent No.5 did acquire the training qualification
of B.P.Ed. which was permissible for in-service candidates as per Rule
16 of the Orissa Education (Recruitment and Conditions of Service of
Teachers and Members of the Staff of Aided Educational Institutions)
Rules, 1974. In this connection, reliance was placed by learned counsel
on the decision in Bibekananda Das v State of Orissa, 1997 (II) OLR
122, holding that a teacher appointed prior to 18.12.1993, without having
the training/qualification for the post, cannot be terminated or denied
approval, but such employee was to be allowed to undergo training in
course of his employment and on completion of the training, he/she
would become entitled to trained scale of pay. Thus, it was submitted
that Respondent No.5’s appointment cannot be said to be illegal for lack
of training/qualification at the time of appointment and moreover, it was
submitted that in the counter-affidavit filed on behalf of the Board of
Secondary Education, Orissa, it has been stated that both the appellant
and the Respondent No.5 were untrained at the time of their respective
appointments and thus, no benefit on this score can accrue to the appellant.
Even apropos the stand of the appellant and the Inspector of Schools
showing that Respondent No.5 was continuing in service from 04.01.1995
to 18.08.2002 in the Sri Thakur Nigamananda High School, Terundia,
it was contended that the same is false and fabricated as the said school
obtained permission only in 2000 and recognition was granted in 2002.
On this issue, it was submitted that at best, even if the Respondent No.5
was appointed in some other school, still his appointment in the present
school would not be nullified, as there can be, possibly, a charge of
misconduct, for which proceedings can be or could have been initiated,
but no such proceedings have in fact been initiated. Insofar as the stand
taken by the appellant that he has continuity on the post is concerned,
learned counsel submitted that continuing in service for a long period
would not make an ab initio invalid appointment valid.
  BICHITRANANDA BEHERA v. STATE OF ORISSA AND                             411
      OTHERS [AHSANUDDIN AMANULLAH, J.]

     ANALYSIS, REASONING AND CONCLUSION:
     14. Having considered the matter, the Court finds that in the face of
competing submissions and rival claims of the appellant and the Respondent
No.5, a balanced view is to be taken of the events which have actually taken
place, keeping in mind the law.
      15. On the factual scenario, 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. From the record it also
transpires that the then incumbent, namely Kapil Sasmal, who was appointed
as PET in the School, continued till 15.10.1993, when he was terminated
by the Managing Committee for absence vide resolution No.39 dated
15.10.1993. 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, 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. We may, in addition, note that
when the interim order dated 11.01.1993 passed in OJC No.80 of 1993 was
vacated, the term of the Managing Committee approved on 15.12.1992 was
already over. Therefore, 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.
      16. It is also noted that the Respondent No.5, for the first time, raised
the issue before the Tribunal challenging the approval order dated 02.04.2005
of the appellant on the basis of resolution dated 07.01.1993 of the Managing
Committee constituted on 28.12.1992. In the period of over 12 years (from
07.01.1993 to 04.05.2005), Respondent No.5 had not moved before any
412           SUPREME COURT REPORTS                         [2023] 15 S.C.R.


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.
      17. On the legal aspect, since the Managing Committee constituted
on 15.12.1992 continued for its full term by virtue of the interim order of
the High Court dated 11.01.1993 and even in the final order disposing of
the case on 23.07.1999, no adverse comment made on actions taken by
the said Managing Committee, coupled with the fact that the appellant
continued to discharge the duties on the post right since his appointment
on 14.05.1994, which is documented in the school register and verified by
the Inspector of Schools, with his having been sent on election duty thrice,
in our view, are sufficient pointers that the appellant had actually worked
and continued on the post. Further, there was no complaint before any
authority, either with regard to the appellant not joining or discharging his
duty or the Respondent No.5 being prevented from joining or discharging
his duty, from any quarter, much less, Respondent No.5 himself, till 2005.
Even with regard to the finding of Respondent No.5 having worked in
another school during the period in question, such finding has not really
been contested. In any event, the material sought to disprove such factual
assertion is not quite forthcoming from the record.
       18. An issue that deserves some attention, as per Respondent No.5, is
that since the Sri Thakur Nigamananda High School, Terundia got permission
in 2000 and received recognition in 2002, the Respondent No.5 could not
have been working there from 04.01.1995 to 18.08.2002. In this context, it is
not incorrect to point out that it is fairly well-known that schools are started
much prior to getting official permission/recognition, which follows after
many years, if at all. Moreover, in the present case, the competent authorities
have come to a finding, upon scrutiny and verification of relevant records
about the factum of Respondent No.5 having worked in the Sri Thakur
Nigamananda High School, Terundia from 04.01.1995 to 18.08.2002, which
this Court has no reason to disbelieve.
     19. The decision by a Division Bench of the High Court in
Bibekananda Das (supra), is not of any help to the Respondent No.5 as
we have not delved into the issue of eligibility for appointment on the post
of PET on the relevant date(s).
  BICHITRANANDA BEHERA v. STATE OF ORISSA AND                             413
      OTHERS [AHSANUDDIN AMANULLAH, J.]

       20. On an overall circumspection, thus, in the present case the
Respondent No.5 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. To the mix, we add that the
State has supported the factual circumstances concerning the appointment
of the appellant, his continuance in service as also the Respondent No.5
having worked during the said period in another school viz. the Sri Thakur
Nigamananda High School, Terundia. Notably, the Respondent No.5 does
not, from the record before us, appear to have approached the authorities
in the interregnum.
     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 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
414            SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      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 over-
      lapping 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 condo-
      nation 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 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 partic-
BICHITRANANDA BEHERA v. STATE OF ORISSA AND                           415
    OTHERS [AHSANUDDIN AMANULLAH, J.]

 ular 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 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 deter-
 mine 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 ac-
 tion 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 fur-
 ther, 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 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)
416           SUPREME COURT REPORTS                           [2023] 15 S.C.R.


      (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 non-existent. 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
      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.
      ×××
      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
BICHITRANANDA BEHERA v. STATE OF ORISSA AND                          417
    OTHERS [AHSANUDDIN AMANULLAH, J.]

 (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 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 Mills
 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 (L&S) 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 12-13)
 “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 chief points to be considered are:
 (i) acquiescence on the claimant’s part; and
 (ii) any change of position that has occurred on the defendant’s part.
       Acquiescence in this sense does not mean standing by while the
 violation of a right is in progress, but assent after the violation has
 been completed and the claimant has become aware of it. It is unjust
 to give the claimant a remedy where, by his conduct, he has done that
 which might fairly be regarded as equivalent to a waiver of it; or where
 by his conduct and neglect, though not waiving the remedy, he has put
 the other party in a position in which it would not be reasonable to
 place him if the remedy were afterwards to be asserted. In such cases
 lapse of time and delay are most material. Upon these considerations
 rests the doctrine of laches.’
 13. In view of the statement of law as summarised above, the
 respondents are guilty since the respondents have acquiesced in
418           SUPREME COURT REPORTS                          [2023] 15 S.C.R.


      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 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
  BICHITRANANDA BEHERA v. STATE OF ORISSA AND                            419
      OTHERS [AHSANUDDIN AMANULLAH, J.]

     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, 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.”
                                                        (emphasis supplied)
     22. For reasons aforesaid, the judgments of the High Court as also the
Tribunal deserve to be, and are accordingly, set aside.
     23. The appellant is held entitled to continuance 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.
      24. The appeal stands allowed in the afore-mentioned terms. No order
as to costs.
      25. However, for complete justice, we cannot leave Respondent No.5
in the lurch, given the time taken by the adjudicatory process. As such, in
exercise of power under Article 142 of the Constitution of India, we direct
420            SUPREME COURT REPORTS                    [2023] 15 S.C.R.


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.


Headnotes prepared by:                                       Appeal allowed.
Divya Pandey