Allahabad High Court
Devendra Kumar Mishra vs State Of U.P.Thru.Prin.Secy.Home & ... on 7 September, 2021
Equivalent citations: AIRONLINE 2021 ALL 2662
Bench: Rajan Roy, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 23.07.2021 Delivered on 07.09.2021 In Chamber Case :- SERVICE BENCH No. - 1426 of 2021 Petitioner :- Devendra Kumar Mishra Respondent :- State Of U.P.Thru.Prin.Secy.Home & Ors. Counsel for Petitioner :- Suresh Chandra Tiwari Counsel for Respondent :- C.S.C. Hon'ble Rajan Roy,J.
Hon'ble Ravi Nath Tilhari,J.
(Per: Hon'ble Mr. Justice Ravi Nath Tilhari,J)
1. Heard Sri Suresh Chandra Tiwari, learned counsel for the petitioner and Sri Manjeev Shukla, learned Additional Chief Standing Counsel appearing for opposite parties.
2. The writ petition has been filed challenging inter alia the judgment and order dated 06.02.2020 passed by the State Public Service Tribunal, Lucknow in reference No. 896 of 2019: Devendra Kumar Mishra Vs. State of U.P. and others, by which the reference/claim petition filed by the petitioner was rejected being barred by limitation. The prayers made in the petition are as under:
"i. Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 6.2.2020 passed by State Public Service Tribunal Lucknow as well as punishment order dated 5.5.2012 passed by Additional Superintendent of Police Traffic Lucknow and order dated 29.09.2012 passed by appellate authority and order dated 14.03.2013 passed by revisional authority contained in Annexure no.1,5,7 and 8 to the writ petition in the interest of justice.
ii. Issue a writ order or direction in the nature of mandamus commanding and directing opposite parties to consider the case of the petitioner for promotion on the post of Head Constable in the interes of justice.
iii. Issue a writ order or direction which deemed fit and proper may kindly be passed in favour of the petitioners.
iv. Allow the writ petition with costs. "
3. The petitioner was appointed on the post of Constable Civil Police on 01.01.1987 and during his posting at Lucknow Police Line, a preliminary enquiry was held and in view of the preliminary inquiry report dated 03.11.2021, the petitioner was served with a Show Cause Notice dated 23.12.2011 under Rule 14 (2) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (herein after referred to as "Rules, 1991") for imposing the penalty of ''censure' under Rule 4 (1) (b) (iv) of the Rules, 1991. The petitioner filed reply dated 09.01.2012.
4. Another Show Cause Notice dated 24.01.2012 was issued on the same charges for imposing fine equivalent to one month salary under Rule 4 (1) (b) (ii) of the Rules, 1991 against which the petitioner filed reply dated 08.02.2012. The Additional Superintendent of Police, Traffic, Lucknow vide order dated 05.05.2012 imposed the penalty of fine equivalent to one month salary. The petitioner preferred departmental appeal, which was dismissed on 29.09.2012 and his revision against this order was also rejected on 14.03.2013 by the Inspector General of Police, Lucknow Zone, Lucknow. Thereafter, the petitioner had filed a representation dated 10.01.2019 under Rule 25 of the Rules, 1991 and during its pendency, the petitioner filed Reference No. 896 of 2019 which has been rejected by the U.P. State Public Service Tribunal, as barred by limitation.
5. Learned counsel for the petitioner has submitted that as the petitioner had preferred representation on 10.01.2019 as provided by rule 25 of the Rules, 1991, the claim petition filed on 27.05.2019 was within the period of limitation of one year as provided under Section 5 (1) (b) (i) of the U.P. Public Services (Tribunals) Act, 1976 (in short "Act, 1976) and as such the Tribunal erred in rejecting the reference as barred by limitation.
6. Sri Manjeev Shukla, learned Additional Chief Standing Counsel has submitted that the claim petition was filed on 27.05.2019 whereas the petitioner's revision was dismissed on 14.03.2013 and as such the claim petition was preferred after more than six years. The claim petition was highly time barred and has been rightly rejected by the Tribunal. He further submitted that mere filing of representation under Rule 25 of the Rules, 1991 would not extend the period of limitation nor would it revive a stale claim. The representation, itself, was filed in the year 2019 and was also not maintainable nor permissible under Rule 25 of the Rules, 1991, as the petitioner had already availed the remedy of appeal which was rejected way back in the year 2012. He submitted that the Tribunal did not commit any illegality in rejecting the claim petition as barred by limitation.
7. We have considered the submissions advanced by the learned counsels for the parties and perused the material on record.
8. It would be appropriate to refer the provisions of Sections 4 and 5 of the U.P. Public Services (Tribunals) Act, 1976, at this very stage.
9. Section 4 of the U.P. Public Services (Tribunals) Act, 1976 reads as under:
"4. Reference of claim to Tribunal.-(1) Subject to the other provision of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter within the jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance.
Explanation.-For the purpose of this sub-section "order" means an order or omission or in-action of the State Government or a local authority or any other Corporation or company referred to in clause (b) of Section 2 or of an officer, committee or other body or agency of the State Government or such local authority or Corporation or company:
Provided that no reference shall, subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public servant.
Provided further that in the case of the death of a public servant, his legal representative, and where there are two or more such representatives, all of them jointly, may make a reference to the Tribunal for payment of salary, allowances, gratuity, provident fund, pension and other pecuniary benefits relating to services due to such public servant.
(2) Every reference under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee in respect of the filling of such reference and by such other fees for the services or execution of processes, as may be prescribed.
(3) On receipt of a reference under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary that the reference is fit for adjudication or trial by it, admit such reference and where the Tribunal is not so satisfied, it shall summarily reject the reference after recording its reasons.
(4) Where a reference has been admitted by the Tribunal under sub-section (3), every proceeding under the relevant service rules or regulation or any contract as to redressal of grievances in relation to the subject-matter of such reference pending immediately before such admission shall abate, and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules, regulations or contract.
(5) The Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievances.
(6) For the purposes of sub-section (5) a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance:
Provided that where no final order is made by the State Government, authority officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.
(7) For the purposes of sub-section (5) and(6) any remedy available to the public servant by way of submission of a memorial to the Governor or to any other functionary shall not be deemed to be one of the remedies, which are available unless the public servant had elected to submit such memorial.
10. Section 5 of the U.P. Public Services (Tribunals) Act, 1976 reads as under:
5. Powers and procedure of the Tribunal.-(1)(a) The Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 (Act 5 of 1908), or the rules of evidence contained in the Indian Evidence Act, 1872(Act 1 of 1872), but shall be guided by the principles of natural justice, and subject to the provisions of this section and of any rules made under Section 7, the Tribunal shall have power to regulate its own procedure (including the fixing of places and times of its sittings and deciding whether to sit in public or in private):
Provided that where, in respect of the subject- matter of a reference, a competent court has already passed a decree or order or issued a writ or direction, and such decree, order, writ or direction has become final, the principle of res judicata shall apply;
(b) The provisions of the Limitation Act, 1963 (Act 36 of 1963) shall mutatis mutandis apply to reference under section 4 as if a reference were a suit filed in civil court so, however, that:-
(i) notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year;
(ii) in computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor), in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded:
Provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference under Section 4 may be made within the period prescribed by that Act, or within one year next after the commencement of the Uttar Pradesh Public Services (Tribunals) (Amendment) Act, 1985, whichever period expires earlier :
Provided further that nothing in this clause as substituted by the Uttar Pradesh Public Service (Tribunal) (Amendment) Act, 1985, shall affect any reference made before and pending at the commencement of the said Act.
(2) The Tribunal shall decide every reference expeditiously and ordinarily, every case shall be decided by it on the basis of perusal of documents and representations, and of oral or written arguments, if any.
(3) The Tribunal may admit in evidence in lieu of any original document, a copy thereof attested by a gazetted officer or by a notary.
(4) The Tribunal shall not ordinarily call for or allow to be adduced oral evidence, and may, if necessary, require any party to file an affidavit.
(5) The Tribunal shall, for the purpose of holding any inquiry under this Act, have, subject to the provisions of sub-section (1), the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908(Act V of 1908), while trying a suit, in respect of the following matters:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872(Act I of 1872), requisitioning any public record or copy thereof from any office;
(e) issuing commission for the examination of witnesses or documenstes;
(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith;
(g) reviewing its decision;
(h) dismissing a reference for default or deciding it ex parte;
(i) setting aside an order of dismissal for default or an order passed by it ex parte;
(j) passing interlocutory orders pending final decision of any reference on such terms, if any, as it thinks fit to impose;
(k) any other matter which may be prescribed.
(5-A) No interim order (whether by way of injunction or stay or in any other manner) shall be passed by the tribunal on or in any proceedings relating to any reference unless--
(a) copies of such reference and application for interim order, along with all documents in support of the plea for such interim order are furnished to the party against whom such petition is filed, and
(b) at least fourteen days' time is given to such party to file a reply and opportunity is given to it to be heard in the matter:
Provided that the Tribunal may dispense with the requirements (a) and (b) and may, for reasons to be recorded, make an interim order, as an exceptional measure, if it is satisfied that it is necessary so to do for preventing any loss to the petitioner which cannot be adequately compensated in money, but any such interim order shall, if it is not vacated earlier, cease to have effect on the expiry of the period of 14 days from the date on which it is made unless the said requirements have been complied with before the expiry of the said period and the Tribunal has continued the operation of that order.
(5-B) Notwithstanding anything in the foregoing sub-sections, the Tribunal shall have no power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an order made or purporting to be made by an employer for the suspention, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant, and every interim order (whether by way of injunction or stay or in any other manner), in respect of such matter, which was made by a Tribunal before the date of commencement of this sub-section and which if in force on that day, shall stand vacated.
(5-C) Notwithstanding anything in the forgoing sub-sections, the Tribunal shall have no power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an adverse entry made by an employer against a public servant, and every interim order (whether by way of injunction or stay or in any other manner) in respect of an adverse entry, which was made by a Tribunal before the commencement of the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 2000 and which is in force on the date of such commencement shall stand vacated.
(6) A declaration made by the Tribunal shall be binding on the claimant and his employer as well as on any other public servant who has, in respect of any claim affecting his interest adversely, been given an opportunity of making a representation against it, and shall have the same effect as a declaration made by a court of law.
(7) The order of the Tribunal finally disposing of a reference shall be executed in the same manner in which any final order of the State Government or other authority or officer or other person competent to pass such order under the relevant service rules as to redressal of grievances in any appeal preferred or representation made by the claimant in connection with any matter relating to his employment to which the reference relates would have been executed.
(8)(a) The employer may appoint a public servant or a legal practitioner, to be known as the Presenting Officer, to present its case before the Tribunal.
(b) The public servant may take the assistance of any other public servant to present his case before the Tribunal on his behalf, but may not engage a legal practitioner for the purpose unless either (i) the Presenting Officer appointed by the employer is a legal practitioner, or (ii) the Tribunal, having regard to the circumstances of the case, so permits.
(9) Any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193, 219 and 228 of the Indian Penal Code(Act XLV of 1860).
(10) A reference or a reply to a reference or an application may be singed either by the appointing authority or by the Presiding Officer or, where the appointing authority is the Governor, by an officer not below the rank of Deputy Secretary authorized by the State Government in this behalf, and in the case of a local authority, corporation or company by the Chief Executive Officer or Secretary thereof, as the case may be.
11. A perusal of Section 4 of the Act, 1976 shows that the Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievances, meaning thereby, that if the public servant is aggrieved by an order pertaining to a service matter he may make reference to the Tribunal for the redressal of his grievances, but for making such reference, the public servant has to first avail of all the remedies available under the service rules, regulation or contract as to redressal of grievances, otherwise, the Tribunal shall not ordinarily admit such a reference.
12. Section 4 of the Act, 1976, which speaks of the public servant to avail of all the remedies available before filing the claim petition, refers to those remedies which are provided by the relevant service rules, regulations or the contract for redressal of grievances. If a remedy is not provided by the service rules, regulations or the contract governing the public servant then such other remedy is not contemplated by Section 4. Further, such statutory remedies are to be availed of within the period of limitation prescribed therefor.
13. Section 5 (1) (b) of the Act, 1976 makes applicable the provisions of the Limitation Act, 1963 (Act 36 of 1963) mutatis mutandis, to reference under Section 4 of the Act, 1976 as if the reference was a suit filed in civil court, but the period of limitation for such reference shall be one year, notwithstanding the period of limitation prescribed in the schedule of the Limitation Act.
14. In S. S.Rathore Vs. State of Madhya Pradesh (1989) 4 SCC 582 the Hon'ble Supreme Court, in the context of Section 20 of the Administrative Tribunals Act,1985, wherein also, the public servant was required to avail of all the remedies available to him under the relevant service rules as to redressal of grievances before approaching the Central Administrative Tribunal, held that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority, where a statutory remedy is provided entertaining the appeal or representation, is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen, but, made it clear that this principle may not be applicable when the remedy availed of has not been provided by law and the repeated unsuccessful representations not provided by law are not governed by this principle.
It is appropriate to refer paragraphs 15 to 20 of the S.S.Rathore (supra) as under:
"15. In several States the Conduct Rules for government servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in court. Section 20(1) of the Administrative Tribunals Act, 1985 provides:
"20. (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances."
16. The Rules relating to disciplinary proceedings do provide for an appeal against the orders of punishment imposed on public servants. Some Rules provide even a second appeal or a revision. The purport of Section 20 of the Administrative Tribunals Act is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the Administrative Tribunals Act. Administrative Tribunals have been set up for government servants of the Centre and several States have already set up such Tribunals under the Act for the employees of the respective States. The law is soon going to get crystallized on the line laid down under Section 20 of the Administrative Tribunals Act.
17. In this background if the original order of punishment is taken as the date when cause of action first accrues for purposes of Article 58 of the Limitation Act, great hardship is bound to result. On one side, the claim would not be maintainable if laid before exhaustion of the remedies; on the other, if the departmental remedy though availed is not finalised within the period of limitation, the cause of action would no more be justiciable having become barred by limitation. Redressal of grievances in the hands of the departmental authorities take an unduly long time. That is so on account of the fact that no attention is ordinarily bestowed over these matters and they are not considered to be governmental business of substance. This approach has to be deprecated and authorities on whom power is vested to dispose of appeals and revisions under the Service Rules must dispose of such matters as expeditiously as possible. Ordinarily, a period of three to six months should be the outer limit. That would discipline the system and keep the public servant away from a protracted period of litigation.
18. We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant Service Rules as to redressal are disposed of.
19. The question for consideration is whether it should be disposal of one appeal or the entire hierarchy of reliefs as may have been provided. Statutory guidance is available from the provisions of sub-sections (2) and (3) of Section 20 of the Administrative Tribunals Act. There, it has been laid down:
"20.(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-
(a) if a final order has been made by the government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial."
20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle."
15. In C. Jacob Vs. Director of Geology and Mining and another 2008 (10) SCC 115, the Hon'ble Supreme Court held that the representation with respect to the matters which have become stale or barred by limitation even if considered and rejected would not give a fresh cause of action or revive a stale claim. Paragraph Nos. 10 and 11 of C. Jacob (supra) are being quoted as under:
"10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a court / tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of "acknowledgment of a jural relationship" to give rise to a fresh cause of action."
16. In Union of India Versus Har Dayal 2010 (1) SCC 394 also the Hon'ble Supreme Court has held that merely giving representation will neither extend the limitation nor wipe out the delay and laches.
17. In State of U.P. and another Vs. Vivekanand Singh and another 2015 (4) AWC 4130 (LB) (DB), this Court held that on a conjoint reading of Sections 4 and 5 (1) (b) of the Act, it is evident that if a remedy has been availed under the statutory service rules and final orders are passed therein, the limitation will be counted from the date of passing of final order, subject of course to the remedy having been availed within the period of limitation prescribed, if any for the said purpose prior to filing of the claim petition. It is appropriate to refer paragraph 19 of Vivekanand Singh (supra) as under:
" 19. Thus, on a conjoint reading of Sections 4 and 5 (1) (b) of the Act it is making evident that if a remedy has been availed under the statutory service the rules and final orders are passed therein, the limitation will be counted from the date of passing of final order, and not from the date of passing of the original order. If the remedy has been availed, but no final order has been passed and a period of six months has expired from the date of availing such remedy, a one month's written notice may be given and on expiry of the said period it is to be deemed that the remedy as provided under the Rules had been availed by the public servant and a claim petition would be maintainable and the same would be treated within the limitation prescribed under Section 5 (1) (b) (i) subject of course to the remedy having been availed within the period of limitation prescribed, if any, for thė said purpose, prior to filing of the claim petition."
18. In Prem Swaroop Singhal Vs. State of U.P. and others reported in 2017(4) AWC 3915 (LB) (DB) this Court has held that the period consumed in decision of an appeal, revision, representation will be excluded only when such remedy is provided under Rules or Orders regulating conditions of service and availed by public servant and not otherwise. When there is no such provision under Rules or Orders regulating conditions of service, Section 5 (1) (b) (ii) will have no application and hence limitation will be only one year from that date when cause of action arose.
19. From the aforesaid, it is well settled that in order to raise the plea that the claim petition is within the period of limitation and not barred by it, it must be shown that the remedy been followed or availed of was a statutory remedy i.e. provided by the relevant service rules, regulations or the contract relating to public servant and such remedy was availed of within the period of limitation prescribed, if any.
20. Keeping in view the settled principles as aforesaid, we now proceed to consider the merit of the submission of the petitioner's counsel that as representation was filed under rule 25 of the Rules, 1991 on 10.01.2019 the claim petition filed on 27.05.2019 was not barred by limitation.
21. The question which requires consideration is as to whether the remedy of representation under rule 25 of the Rules, 1991 was a statutory remedy available to the petitioner before filing of the claim petition. If the answer is in the negative and the claim petition had become time barred on the date of its filing or even before filing of the representation under rule 25, such representation would not revive the time barred claim of the petitioner.
22. Now, it would be appropriate to reproduce Rule 25 of the Rules, 1991 which reads as follows:
"25. Powers of Government. - Notwithstanding anything contained in these Rules, the Government may, on its own motion or otherwise call for and examine the records of any case decided by an authority, subordinate to it in the exercise of any power conferred on such authority by these rules and against which no appeal has been preferred under these rules and
(a) confirm , modify or revise the order passed by such authority , or
(b) direct that a further inquiry be held in the case ; or ( c ) reduce or enhance the penalty imposed by the order ; or ( d ) make such other order in the case as it may deem fit :
Provided that where it is proposed to enhance the penalty imposed by any such order the Police Officer concerned shall be given an opportunity of showing cause against the proposed enhancement ."
23. A perusal of Rule 25 of the Rules, 1991 shows that notwithstanding anything contained in the Rules, 1991 the Government may on its own motion or otherwise call for and examine the records of any case decided by authority subordinate to it in the exercise of any power conferred on such authority by the Rules, 1991 and against which no appeal has been preferred under these Rules. We emphasize the expression "against which no appeal has been preferred under the Rules, 1991". So the power of the Government under Rule 25, can be invoked by the public servant if the appeal has not been preferred under the Rules, 1991 against the order of punishment pertaining to his service matter. Rule 20 of the Rules, 1991 provides for appeal against the order of punishment mentioned in sub-clauses (i) to (iii) of Clause (a) and sub-clauses (i) to (iv) of Clause (b) of Rule 4, to the authorities mentioned in Rule 20. The order of punishment in the petitioner's case was passed under Rule 4 (1) (b) (ii) which is appealable under Rule 20 and undisputedly the petitioner preferred such appeal, which was dismissed on 29.09.2012. Even the revision preferred under Rule 23 against the said order was dismissed on 14.03.2013. In view thereof the remedy by way of representation to approach the Government under Rule 25 of the Rules, 1991, was not available to the petitioner. Such a remedy cannot be said to be a remedy available under the service rules, so far as the petitioner is concerned, to have been availed of before filing the claim petition.
24. The petitioner's revision was dismissed on 14.03.2013, which is the final order under the Rules, 1991. The period of limitation of one year to file the claim petition would therefore be counted from this date and on expiry of one year the claim petition became barred, in view of the settled proposition of law that period of limitation once starts running would not stop in the absence of any statutory provision, and would run it's full course. Filing of representation under Rule 25 on 10.01.2019, which representation was even not maintainable, would not revive the petitioner's claim, which had already become time barred in view of the law laid down in the cases of S.S. Rathore (supra) and C. Jacob (supra) that by filing representation any fresh cause of action can not arise nor it revives stale or dead claim.
25. In view of the aforesaid, we are of the considered view that the remedy under Rule 25 of the Rules, 1991 not being available to the petitioner, the claim petition, admittedly filed after six years of the order of rejection of the petitioner's revision, was barred by limitation under Section 5 (1) (b) of the Act, 1976.
26. The claim petition has rightly been rejected by the Tribunal. The order of the Tribunal is perfectly justified and calls for no interference.
27. The writ petition is dismissed.
Order Date :- 07.09.2021
Arvind
(Ravi Nath Tilhari,J.) (Rajan Roy,J.)