IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.3438 of 2009 ==================================================== RAM SEWAK SINGH - Petitioner/s(s) . Versus THE STATE OF BIHAR & ORS- Respondent/s(s) . ==================================================== Appearance : For the Petitioner/s: Mr. SANJEEV KUMAR MISHRA Mr. SARITA KUMARI For the Respondent/s: Mr. (GA8) ==================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA DATE: 12-07-2011 ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 03. 12.07.2011 Heard learned counsel for the petitioner and for the State. The petitioner is stated to have superannuated on 30.4.1999. On 12.6.2000 the second time bound promotion granted to him came to be cancelled. He preferred C.W.J.C. No. 548 of 2000 for grant of pensionary benefits. The quantum of the pensionary benefit was directly connected and affected by the order cancelling the time bound promotion. The petitioner did not challenge the order dated 12.6.2000. This writ petition was disposed on 24.7.2003. For that reason, the Court granted him the indulgence to represent in respect of the second time bound promotion. Once the Court granted him that indulgence, he cannot turn around and seek to found 2 a cause of action upon the same. The claim on merits was clearly barred on the principles constructive res judicata, devoid of legal merit. The petitioner appears to have come to this Court again in C.W.J.C. No. 9939 of 2003, questioning the order dated 12.6.2000. The writ application was withdrawn to pursue his remedy by a representation. The submission now is that a representation has been filed, but is not being disposed. The modus operandi adopted by the petitioner has more than adequately been noticed by the Supreme Court of the manner in which such innocuous observations are sought to be made a cause of action. It has been frowned upon as generating litigation in (2010) 2 SCC 59 (Union of India v. M.K. Sarkar), at paragraphs 14, 15 and 16 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 considered by this Court in C. Jacob v. Director of Geology and Mining1: (SCC pp. 122-23, 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 3 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 applications/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 obliterated 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 4 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.” The Court is not persuaded to encourage repeated litigation by the petitioner. But if he has filed a representation, the Court only expects the respondents to consider the same. The petitioner is left to his fate. Any order passed therein shall not be a basis for a fresh cause of action for a repeat litigation. The writ application stands disposed. P.K. ( Navin Sinha, J.)