TaxTMI 
TaxTMI 
1994 (12) TMI 356
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....t rules in that regard. 3. The conditions of service of the Judges of the High Court are regulated by the High Court Judges (Conditions of Service) Act, 1954 (for short "the Act"). In exercise of the powers conferred upon it under Section 24 of the Act, the Central Government has framed rules as per its notification dated 24-1-1956 to carry out the purposes of the Act known as the High Court Judges Rules, 1956 (for short "the 1956 Rules"). Rule 2 of the said 1956 Rules as it existed at the time of retirement of the petitioner is reproduced below : "2. Conditions of service in certain cases - The conditions of service of a Judge of a High Court for which no express provisions has been made in the High Court Judges (Conditions of Service) Act, 1954, shall be, and shall from the commencement of the Constitution be deemed to have been, determined by the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the States in which the principal seat of the High Court is situated. Provided that, in respect of facilities for medical treatment and accommodation hospitals, the provisions of th....
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....definition that D. C. R. G. was included in the definition of the expression "Pension" by the above amending Act. The said Amending Act also introduced Section 17A according to which the family of a Judge was made entitled to extra ordinary pension and gratuity on his death. 5. It is, however, by the High Court Judges (Conditions of Service) Amendment Act, 1976 that the relevant provision for D. C. R. G. was introduced in the Act. By the said Amending Act, the existing Section 17A was numbered as sub-section (1) and sub-section (2) and (3) were introduced in the said Section 17A of the Act. By sub-section (2) of the said Section 17A, the benefit of gratuity was extended to those Judges who were not covered by Section 17 of the Act. However, the material provision so far as D. C. R. G. was concerned was sub-section (3) thereof by which with retrospective effect from 1-10-1974 the benefit of D. C. R. G. was granted to the Judge of the High Court as it was permissible in relation to an Officer of the Central Civil Services Class I. 6. The express provision to grant the above benefit of D. C. R. G. is thus enacted by the above Amending Act of 1976 with retrospective effect from 1....
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....ed Leave for which there is no provision in the Act. (See Union of India v. Gurnam Singh [1982] 3 SCR 700, Shiv Dayal v. Union of India [1984] 2 SCR 853 and its recent judgment in the case of Union of India v. Justice S. S. Sandhawalia (1994) IILLJ 509 SC . In view of all these judgments, we are in agreement with the view taken by the Allahabad High Court in the case of M. C. Desai v. Union of India cited supra that the Judges of the High Court who have retired prior to 1-10-1974 are entitled to D. C. R. G. in accordance with the provisions of the 1958 Rules applicable to the members of the All India Services. The petitioner is, therefore, entitled to D. C. R. G. in accordance with the provisions of Rule 19(1) read with Rule 17 of the 1958 Rules. 9. What is, whoever, strenuously urged before us is that there is an inordinate delay in making claim of D. C. R. G. in this Court by the petitioner who has filed the instant writ petition on or about 19-7-1993 although he has retired on 30-11-69. The submission is that at any rate within reasonable time from the date of judgment of the Allahabad High Court cited supra upon which reliance is placed, the petitioner should have moved this....
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.... 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 were by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in situation in which it would not be reasonable to place him if the remedies 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 no 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. It is clear from the above passage quoted with approval by the Constitution Bench of the Supreme Court then in e....
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..... However, in the case of M/s. Tilokchand Motichand v. H. B. Munsil [1969] 2 SCR 824, relied upon on behalf of the respondent No. 1, although it is observed by Hidayatullah C. J. (as he then was) in para 7 of his judgment that the Supreme Court will not inquire into the belated and state claim or take note of neglect of one's own rights for a long time, it is not laid down by him as an inflexible rule that the delay for more than the period of limitation prescribed for a civil action would always be treated as unreasonable delay. He has observed in para 11 of his judgment as follows :- "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 did 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." He has observed in para 7 as follows :- "T....
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.... decision of the Supreme Court on the question of inordinate delay and laches including its decision in Tilokchand Motichand's case and Bhailal Bhai's case cited supra relied upon on behalf of the respondent No. 1. In para 14 of his Judgment, he has observed as follows : Para 14 : .... We agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Article 226 of the Constitution the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner which indicate either the abandonment of his claim or which is of such nature for which there is no probable explanation or which will cause any injury either to respondent or any third party. It is true that in some cases the period of three years in normally taken as a period beyond which the Court should not grant relief but that is not an inflexible rule. It depends upon the facts of each case." 18. In this recent decision in the case of Dehri Rohtas Light Rly. Co. Ltd. V. District Board Bojpur [1992] 2 SCR 155, the Supreme Court has again reiterated the principle relating to inordina....
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....tioner, so as to infer that he has given up his claim or whether before the petitioner has moved the Writ Court, the right of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay. 20. It appears that since there was no express provision in the Act conferring the benefit of D. C. R. G. upon the Judges of the High Court prior to the Amending Act of 1976 which conferred the said benefit upon the Judges of the High Court who retired after 1-10-1974, neither the Union of India nor the petitioner realised that the D. C. R. G. is payable to the Judges of the High Court who retired prior to 1-10-1974 under the 1958 Rules in view of Rule 2 of the 1956 Rules. In fact the said question came to the fore when some of the Judges of the Allahabad High Court who had, like the petitioner retired prior to 1-10-1974, filed a Writ Petition in the Allahabad High Court claiming the benefit of D. C. R. G. in view of Rule 2 of the 1956 Rules according to which if there was no express provision in the Act regarding any condition of service of a Judge of the High Court, the said condition of service was to be determined as....
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....ive pronouncement declaring the right of particular persons, then the benefit of the said judgment should be given to all other persons similarly situated i.e. belonging to the same class without the State being allowed to raise the ground of delay. It is only because the Union of India failed to implement the said obligation uniformly in respect of all other person similarly situated including the petitioner, that the petitioner had to file the instant writ petition. It is true that the above question was referred to the larger Bench by the Supreme Court in the case of Pralhadsingh v. Union of India AIR 1989 SC 1563 but then the said question was not answered by the larger Bench of the Supreme Court since it reversed the view taken by the High Court of Himachal Pradesh in T. R. Thakur's case on the basis of which similar benefit was claimed by the petitioner in Pralhad Singh's case cited supra. See Jaghnath v. Union of India (1992) ILLJ 325 SC . It is material to see that where there is no delay on the part of the petitioners in approaching the Court, it is well settled that the benefit of the earlier decision of the Court should be extended to the persons similarly situat....
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.... India that the claim of D. C. R. G. made by the petitioner should be rejected on the ground of inordinate delay. 25. The next question which needs consideration is whether the petitioner is entitled to interest upon the amount of gratuity payable to him at the rate of 12% P. A. from the date of his retirement till realisation. In this regard it has to be noticed that by amendment of the 1958 Rules by notification dated 1617/83 Rule 19A providing for statutory interest is introduced in the said 1958 Rules which regulate D. C. R. G. payable to the members of the Indian Administrative Service. According to the said Rule 19A the interest @5% P. A. is made statutorily payable if the payment of D. C. R. G. is not made within 3 months from the date when it become due. 26. The Allahabad High Court has, in para 11 of its Judgment cited supra, considered the question of grant of interest upon the DCRG payable to the petitioners in the writ petition before it. Since it was of the view that the Union of India was at fault in not granting the benefit of D. C. R. G. to the petitioners in the said writ petition for such a long time, it held that in the interest of justice the petitioners i....