Allahabad High Court
Prem Swaroop Singhal vs State Of ... on 1 May, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 3 Case :- SERVICE BENCH No. - 851 of 2015 Petitioner :- Prem Swaroop Singhal Respondent :- State of U.P. and others Counsel for Petitioner :- K.S.Pawar Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal, J.
Hon'ble Virendra Kumar-II, J.
1. Pursuant to order of date passed on Recall/Restoration Application, the writ petition is restored to its original number.
2. As requested and agreed by learned counsels for parties, we proceed to hear and decide this case finally at this stage.
3. This writ petition is directed against judgment and order dated 30.03.2015 passed by State Public Services Tribunal (hereinafter referred to as "Tribunal") in Claim Petition No. 1141 of 2013 whereby Claim Petition has been rejected and order dated 22.04.2014 passed by State Government pursuant to an interim order dated 11.10.2013 passed by Tribunal in the aforesaid Claim Petition has been confirmed.
4. The dispute relates to the grant of selection grade to petitioner on the post of Superintending Engineer with effect from 01.08.2001. Petitioner, admittedly was appointed as Assistant Engineer on 18.12.1970, promoted as Executive Engineer in August' 1988, promoted as Superintending Engineer by order dated 08.03.2001 and ultimately retired after attaining age of superannuation on 31.10.2005. His grievance is that by order dated 02.02.2006 selection grade was granted to 53 Superintending Engineers, which, according to petitioner, included some of his juniors and, therefore, he made representations and then filed aforesaid Claim Petition, initially seeking following relief:
"(i) The Hon'ble Tribunal kindly be pleased to issue directions to respondent to grant the selection grade of Superintending Engineer in the pay scale of Rs. 14300-18300 to petitioner w.e.f. 1.8.2001 with all consequential service benefits including arrears of salary & revised pensionary benefits after fixing his salary in the said selection grade alongwith interest @ 12% per annum w.e.f. date such amounts became due to him till the date of actual payment."
5. By way of interim relief, petitioner requested before Tribunal that his representation dated 22.07.2013 be directed to be decided. Tribunal passed an interim order on 11.10.2013 directing respondents-authorities to decide representation dated 22.07.2013 and in the meantime respondents were also directed to file counter affidavit. Pursuant to the aforesaid interim order, representation was considered and rejected by order dated 22.04.2014 giving reasons of petitioner's non selection in Para-7 of the said order, as under:
¼1½ o"kZ 1995&96 izfrdwy lalwfpr izR;kosnu vLohd`rA ¼flapkbZ vuqHkkx&1 'kklukns'k la0&553@27&1&01&03] fnukad 15-11-2003 }kjk o"kZ 1995&96 dh izfrdwy izfof"V ds fo:) fn;k x;k izR;kosnu vLohd`r fd;k x;kA½ ¼2½ o"kZ 1999&2000 fuUnk izfof"V fuUnk izfof"V fuUnk izfof"VA ¼flapkbZ vuqHkkx&6 'kklukns'k la0&1423@99&27&fla&6&122] fnuakd 21-04-1999 ,oa 'kklukns'k la[;k&1861@99&27&fla&6&142@98] fnukad 21-05-1999 }kjk fuUnk izfof"VA ¼3½ o"kZ 2001&02 dBksj psrkouh flapkbZ vuqHkkx&2 ds 'kklukns'k la[;k&2433@2001&27&fla&2&17 vk0 ck0 fnukad 25-08-2001 }kjk dBksj psrkouhA ¼4½ o"kZ 2002&03 Lkpsr flapkbZ vuqHkkx&1 ds 'kklukns'k la0&1075@27&1&2002&67 MCyw0ih0 fnuakd 18-03-2000 }kjk lpsrA ¼5½ o"kZ 2003&04 fo'ks"k izfrdwy izfof"V flapkbZ vuqHkkx&10 ds 'kklukns'k la0&2614@2003&27&fla&10 fnukad 04-08-03 }kjk o"kZ 2003&04 esa fo'ks"k izfrdwy izfof"VA ¼6½ o"kZ 2004&05 fuyEcu fuyEcu ls cgkyh vuq'kklfud dk;Zokgh ;Fkkor~A flapkbZ vuqHkkx&10 ds 'kklukns'k la0&1755 tkap@04&27&fla&10&99 fnukad 10-06-04 }kjk fuyfEcrA 'kklukns'k la0&3540 tkap@04&27&fla&10 fnukad 01-11-2004 }kjk cgky ,oa i= la0&381@fla 10] fnukad 08-06-05 }kjk vuq'kklfud dk;Zokgh ;Fkkor~ pyrs jgus dk vkns'kA (1) Year 1995-96 Adverse (Entry) communicated, Representation rejected. (Vide Government Order No.-553/27-1-01-03, dated 15.11.2003 of Irrigation Section-1, the representation preferred against Adverse Entry for the year 1995-96, has been rejected.) (2) Year 1999-2000 Censure Entry Censure Entry Censure Entry.
(Censure Entry vide Government Order No.- 1423/99-27-Si-6-122, dated 21.04.1999 and Government Order Number- 1861/99-27-Si-6-142/98, dated 21.05.1999 of Irrigation Section-6) (3) Year 2001-02 Strict Warning Strict Warning vide Government Order Number-2433/2001-27-Si-2-17 Aa.Ba., dated 25.08.2001 of Irrigation Section-2. (4) Year 2002-03 Caution Caution vide Government Order No. -1075/27-1-2002-67 W.P., dated 18.03.2000 of Irrigation Section-1. (5) Year 2003-04 Special Adverse Entry Special Adverse Entry in the Year 2003-04 vide Government Order No.- 2614/2003-27-Si-10, dated 04.08.03 of Irrigation Section-10. (6) Year 2004-05 Suspension Reinstatement from Suspension.
Disciplinary proceedings to remain as it is.
Suspension vide Government Order No. 1755Jaanch/04-27-Si-10-99, dated 10.06.04 of Irrigation Section-10. Reinstated vide Government Order No.-3540Jaanch/04-27-Si-10, dated 01.11.2004. And order for continuing the disciplinary proceedings as it is, vide Letter No.-381/Si-10, dated 08.06.05. (English Translation by Court)
6. Ultimately Claim Petition has been rejected.
7. At the outset, we find that Claim Petition was apparently barred by limitation. Even if cause of action arose to petitioner on issue of Office Memorandum dated 02.02.2006 whereby some of his juniors were given promotion, thereagainast, as per own showing of petitioner, first representation was made by him on 09.12.2006. Further representations were made on 20.04.2013, 20.05.2013 and 22.07.2013. The provision for limitation for filing Claim Petition before Tribunal under Section 5 of U.P. Public Services (Tribunals) Act, 1976 (hereinafter referred to as "Act, 1976") reads as under:
"5. Power and procedure of the Tribunal-
(1) (a)...........
(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 where 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 Services (Tribunal) (Amendment) Act, 1985 shall affect any reference made before and pending at the commencement of the said Act."
(emphasis added)
8. Limitation for filing Claim Petition before Tribunal under Section 5(1)(b)(i) is one year. Section 5(1)(b)(ii) provides that in computing period of limitation of one year, period taken when a representation, or appeal in accordance with Rules or Orders regulating the conditions of service was made and ending the date on which public servant has knowledge of final order passed on such appeal or representation, as the case may be, shall be excluded. Therefore period consumed in decision of an appeal, revision, representation or writ petition 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. It is not shown to us, despite repeated query, as to under which provision of Rules or Orders regulating the conditions of service, the alleged representation dated 09.12.2006 and subsequent once were made. 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. In the present case, when on 02.02.2006 selection grade was allowed to others ignoring claimant-respondent, limitation expired on expiry of one year from the date of said order and Claim Petition, therefore, was apparently barred by limitation.
9. Mere fact that subsequently representations were made and the same were directed to be decided by Tribunal will not revive period of limitation which has already expired.
10. In C. Jacob Vs. Director of Geology and Mining and another 2008 (10) SCC 115, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, Court has expressed its views as under:
"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." (emphasis added)
11. In Union of India and others Vs. M.K. Sarkar 2010 (2) SCC 59, Court after referring to C. Jacob (supra) has ruled, 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.
12. From the aforesaid authorities it is clear as crystal that even if Court or Tribunal directs for consideration of representations relating to a stale claim or dead grievance, it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322, Court took note of the factual position and laid down that when nearly for two decades respondent- workmen therein had remained silent, mere making of representations could not justify a belated approach.
13. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1967 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330. The aforesaid authorities of Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479, Court held that it is well settled principle of law that delay defeats equity.
14. We may also point out that by virtue of Section 5(1)(b) of Act, 1976, provisions of Limitation Act, 1963 (hereinafter referred to as "Act, 1963") have been made applicable as if Reference is a Suit filed in a Civil Court and that being so, even Section 5 of Act, 1963 will not apply for the reason that delay in filing Suit cannot be condoned by taking recourse to Section 5 of Act, 1963 as it is applicable to proceedings and appeals but not to Suit. For the purpose of Suit, it is only if some period may be excluded in computing limitation under various provisions of Act, 1963, that may benefit a person who has filed Suit; or, in the present case, Reference before Tribunal after expiry of period of limitation, otherwise Section 5 will not apply.
15. Section 5 of Act, 1963 applies to the stages subsequent to institution of a valid Suit and those proceedings which are construed as continuation of Suit and not for seeking condonation of delay in filing a time barred Suit. Even when the suit proceedings have come to an end, in execution proceedings also Section 5 shall not be applicable. A Suit if otherwise is barred by time and is not saved by other provisions of Sections 4 and 6 to 24 of Act, 1963 then it shall not be entertainable by the Court and has to be dismissed in view of the obligation created vide Section 3 of Act, 1963. Section 5 specifically says that it is applicable to an appeal or applications but not to a suit.
16. This Court in Smt. Jagwanta Vs. Smt. Nirmala and others, 1982 AWC 591 has specifically said that Section 5 does not apply to suits. A similar view has also been taken in Badri Narayan Sharma Vs. Panchayat Samiti, Dhariawad, AIR 1973 Raj. 29.
17. The matter of limitation has not been considered by Tribunal though Claim Petition in 2013 was apparently barred by limitation.
18. Be that as it may, even otherwise, authorities have found that petitioner's services were not satisfactory and reasons have been given. In absence of anything to show that the said findings are incorrect or based on no material, we do not find any reason to interfere.
19. The writ petition lacks merits. Dismissed.
20. Interim order, if any, stands vacated.
Dt. 01.05.2017 PS Court No. - 3 Case :- SERVICE BENCH No. - 851 of 2015 Petitioner :- Prem Swaroop Singhal Respondent :- State of U.P. and others Counsel for Petitioner :- K.S.Pawar Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal, J.
Hon'ble Virendra Kumar-II, J.
1. This is an application seeking condonation of delay in filing Recall/Restoration Application.
2. Heard.
3. Cause shown for delay in filing Recall/Restoration application is sufficient.
4. Delay in filing Recall/Rstoration application is condoned.
5. This application, accordingly, stands allowed.
Dt. 01.05.2017 PS (C.M.A. 1764/17) Court No. - 3 Case :- SERVICE BENCH No. - 851 of 2015 Petitioner :- Prem Swaroop Singhal Respondent :- State of U.P. and others Counsel for Petitioner :- K.S.Pawar Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal, J.
Hon'ble Virendra Kumar-II, J.
1. This is an application seeking restoration of writ petition after recall of order dated 17.11.2016 whereby writ petition was dismissed for non prosecution.
2. Cause shown for non appearance is sufficient.
3. Order dated 17.11.2016 is hereby recalled and writ petition is . is restored to its original number.
4. This application, accordingly, stands allowed.
Dt. 01.05.2017 PS (C.M.A. 1766/17)