Madras High Court
K.K.Perumalsamy vs Tamil Nadu Electricity Board on 1 March, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2010
CORAM:
THE HONBLE MR. JUSTICE K.CHANDRU
W.P.No.4192 of 2010
1 K.K.PERUMALSAMY [ PETITIONER ]
Vs
1 TAMIL NADU ELECTRICITY BOARD
REP. BY ITS CHAIRMAN
144, ANNA SALAI
CHENNAI-2.
2 THE CHIEF ENGINEER (PERSONNEL)
ADMINISTRATIVE BRANCH
TAMIL NADU ELECTRICITY BOARD
144, ANNA SALAI
CHENNAI-2.
[ RESPONDENTS ]
Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records of the 2nd Respondent relating to the impugned Memo (Per) No.107755/350/ G.17/G.172/ F.Pay Ano/2007-6 dated 4.11.2009 and to quash the same and consequently direct the Respondents to rectify the pay anomaly by refixing the pay of the Petitioner on par with his junior Mr.V.Ganesan with all consequential arrears of pay and pension fixation within a time frame.
For Petitioner :: Mr.K.M.Ramesh
For Respondents :: Mr.M.Vaidyanathan
O R D E R
The petitioner is a retired Assessment Officer employed in the Tamil Nadu Electricity Board. He has come forward to challenge the impugned order dated 4.11.2009, wherein and by which he was informed that his request for refixation of pay on par with his junior V.Ganesan with effect from 1.12.1992 cannot be feasible for compliance. In the very same order, he was also informed that his request was already examined and it was negatived on the ground that he was drawing lesser rate of pay than the junior prior to the date of request of refixation of pay on 1.10.2003. The petitioner has not challenged that order for the reasons best known to him.
2. On the contrary, he drew inspiration from another Writ Petition filed by A.Selvaraj in W.P.No.15256 of 2008, which was disposed of by this Court on 10.9.2008. In that case, this Court gave a direction to consider of request of that petitioner on merits and in accordance with law within four weeks. Therefore, Mr.K.M.Ramesh, learned counsel for the petitioner contended that the petitioner should have also been given a similar direction to consider his case in accordance with law.
3. It is seen that after the rejection of his request, the petitioner has sent a representation in the year 2004 and thereafter never approached this Court. But he has been sending representation after representations again in 2004 and 2005 finally in 2009. Therefore, in the matter of pay fixation, the learned counsel for the petitioner submits that it gives a fresh cause of action and the present case should be dealt with as in the case of Mr.A.Selvaraj referred to above. This Court is not inclined to accept any of the submissions made by the learned counsel for the petitioner.
4. It is seen from the affidavit that the petitioner is 63 years old and has already retired from service five years ago. Secondly, as found in the impugned order, he was informed in 2003 that his request for pay parity cannot be considered. Nothing prevented the petitioner from challenging that order. The petitioner by sending repeated representations cannot revive a stale cause of action.
5. The Supreme Court very recently in Union of India and others vs. M.K.Sarkar reported in (2010) 2 SCC 59 in paragraphs 14, 15 and 16 had observed as follows:
"14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been consi0dered by this Court in C.Jacob v. Director of Geology and Miniting : (SCC Public Prosecutor 122-23 in para 9) "9. The courts/Tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realise the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High courts routinely entertain such application/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obligerated or ignored."
15. When a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
16. A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead" or "stale " issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct "consideration" without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect. (emphasis added)"
6. In the light of the above, this Court is not inclined to entertain the Writ Petition. Hence, the Writ Petition stands dismissed. No costs.
ajr To 1 THE CHAIRMAN TAMIL NADU ELECTRICITY BOARD 144, ANNA SALAI CHENNAI-2.
2 THE CHIEF ENGINEER (PERSONNEL) ADMINISTRATIVE BRANCH TAMIL NADU ELECTRICITY BOARD 144, ANNA SALAI CHENNAI 2