Allahabad High Court
Arun Kumar Srivastava vs State Of Uttar Pradesh Principal ... on 27 October, 2017
Bench: Anil Kumar, Daya Shankar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 7 Case :- SERVICE BENCH No. - 18420 of 2017 Petitioner :- Arun Kumar Srivastava Respondent :- State Of Uttar Pradesh Principal Secretary, Irrigation Depar Counsel for Petitioner :- Shailendra Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Daya Shankar Tripathi,J.
Heard Sri S.K. Singh, learned learned counsel for petitioner, Sri Amar Chaudhary, learned counsel for respondents and perused the record.
Facts in brief of the present case are that petitioner was initially appointed on the post of Junior Clerk in the Irrigation Department, State of U.P. promoted from the post of Senior Clerk on 01.09.1989. After attaining the age of superannuation, he retired from service on 31.01.2007.
After retirement from service, petitioner made a representation on 21.04.2014 that he may be promoted to the post of Junior Clerk to the post of Senior Clerk from 18.01.1975 when his junior Sri Vinod Kumar Bhatnagar has been promoted on the ground that the said fact has come to his knowledge on 20.01.2014.
When no heed paid, the petitioner approached Public Service Tribunal by filing Claim Petition No. 2135/2016 (Arun Kumar Srivastava Vs. State of U.P. and others) with a prayer that the official respondent may be directed to promote him from the post of Junior Clerk to the post of Senior Clerk from 18.01.1975 when his junior Sri Vinod Kumar Bhatnagar was promoted with all consequential benefits.
After exchange of the pleadings between the parties, the Tribunal had rejected the claim of the petitioner on the ground that the relief as claimed by the petitioner cannot be granted after a long gap and the same is highly time barred.
Aggrieved by the order dated 18.11.2016 passed by Tribunal in Claim Petition No. 2135/2016, the same was challenged by the petitioner by filing present writ petition.
The sole argument which has been raised by learned counsel for petitioner in the present case is that on a representation made by the petitioner on 21.04.2014 in regard to his grievances for promoting him from the post of Junior Clerk to the post of Senior Clerk when his junior Sri Vinod Kumar Bhatnagar was promoted with all consequential benefits as on the representation made by the petitioner, Engineer-in-Chief vide letter dated 06.05.2015 has sought certain information from the authorities concerned. So, keeping in view the said facts, even if the claim petition filed by the petitioner has been dismissed on the ground of limitation being time barred, a direction may be issued to the official respondent to consider the case of the petitioner in view of the said facts.
We have heard learned counsel for parties and gone through the record.
It is not in dispute in the present case that the petitioner after retiring from service from the post of Senior Clerk, Irrigation Department, State of U.P. has submitted an application on 21.04.2014 to the effect that his case for promotion from the post of Junior Clerk to the post of Senior Clerk from the date 18.01.1975 when his junior Sri Vinod Kumar Bhatnagar was promoted with all consequential benefits.
Thus, the petitioner has raised his grievances for considering his case of promotion from the post of Junior Clerk to the post of Senior Clerk after 39 years from the date when the cause of action has occurred, during the said period, he had not raised any grievances.
Hon'ble the Apex Court in the case of State of Uttaranchal & others Vs. Sri Shiv Charan Singh Bhandari & others, 2014 (1) LBESR 141 (SC), held as under:-
"We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983. 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, the court has expressed thus: -
"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."
In Union of India and others Vs. M.K. Sarkar 2010 (2) SCC 59, Hon'ble the Supreme Court, after referring to C. Jacob Vs. Director of Geology and Mining and another, 2008 (10) SCC 115 has ruled that 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.
From the aforesaid authorities it is clear as crystal that even if the 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, Hon'ble Apex Court took note of the factual position and laid down that when nearly for two decades the respondent-workmen therein had remained silent mere making of representations could not justify a belated approach.
In State of Orissa V. Pyarimohan Samantaray, 1977 (3) SCC 396 it has been opined by Ho'ble Supreme Court that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa V. Arun Kumar Patnaik, 1976 (3) SCC 579.
In New Delhi Municipal Council Vs. Pan Singh and others 2007 (9) SCC 278, Ho'ble Supreme Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway Vs. State of Tamil Nadu, 1975 (1) SCC 152 wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters."
In the case of Naresh Kumar Vs. Department of Atomic Energy and Others, JT 2010 (7) SC 77, Hon'ble Supreme Court has held as under :-
"If an employee keeps making representation after representation which are consistently rejected then the appellant cannot claim any relief on that ground. We are unable to find any merit in the contention raised before us and we are also of the view that the High Court was not in error while dismissing the writ petition even on the ground of unexplained delay and laches."
Again, Hon'ble the Apex Court in the case of State of Orissa and anohter Vs. Mamata Mohanty (2011) 3 SCC 436 in respect to matter in delay and laches in filing writ petition under Article 226 of the Constitution of India in Paragraph nos. 53 & 54 held as under :-
"Para 53- "Needless to say that the Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 01.01.1986 by filing a petition on 11.11.2005 but the High Court for some explained reason granted the relief w.e.f. 1.6.1986, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.
Para 54- "This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time (See- Rup Diamonds Vs. Union of India (1989) 2 SCC 356)".
Thus, in view of the above said judgment rendered by Hon'ble the Apex Court, the position which emerges out is that the person who stands by and allow things to happen and then approached the Court to put forward state claims and try to unsettle settled matters is not entitled for any relief.
In the instant matter, as stated above, the petitioner has raised his grievances in respect to promotion from the post of Junior Clerk to the post of Senior Clerk when his junior Sri Vinod Kumar Bhatnagar was promoted after 39 years from the date when cause of action occurred to him and that too after retirement, so we do not find any illegality or infirmity in the impugned judgment passed by the Tribunal, under challenge in the present writ petition.
So far as the argument raised by learned counsel for petitioner that even if Tribunal has rejected the petitioner's claim petition on the ground of limitation being highly time barred, a direction may be issued to the official respondent to consider the case of the petitioner for promotion in view of the correspondence which has been made to official respondent/Engineer-in-Chief, Irrigation Department, State of U.P., Lucknow on 07.05.2015. The said relief cannot be granted to the petitioner because in the instant matter while exercising power under Article 226 of the Constitution of India, we have to scrutinize the judgment passed by the Tribunal while deciding the claim petition and find out whether any illegality or infirmity has been done by the Tribunal in passing the impugned judgment or not. Considering the facts and circumstances of this case, we are not convinced to issue a writ of mandamus thereby directing the appointing authority/appropriate authority of the petitioner to consider the case of the petitioner for promotion .
For the foregoing reasons, the writ petition lacks merit and is dismissed.
(Daya Shankar Tripathi, J.) (Anil Kumar, J.) Order Date :- 27.10.2017 Ravi/