IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 14901/2008 Reserved on: 22.6.2011 Decided on:29.06.2011 ____________________________________________________ Sita Ram. …Petitioner. Versus State of H.P. and others. …Respondents. ______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. P.P. Chauhan, Advocate. For the Respondent : Mr. R. P. Singh, Asstt. A.G. for respondents No. 1 and 2. Mr. Dilip Sharma, Advocate for respondents No. 3 and 5. Mr. Virender Verma, Advocate for respondent No.4. ___________________________________________________ Justice Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioner was initially appointed as Clerk in the respondent-Board on a fixed salary on 19.8.1975. Respondent No.4 was appointed as Balsevika in the pay scale of Rs. 110-4-150 on the fixed pay on 18.5.1972. She worked as Balsevika till 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 1974. However, it has come in the office order dated 6.2.2007 that in fact respondent No.4 has worked as Clerk and not as Balsevika. The pay scale of Balsevika and Clerk was identical. She was conferred with regular status of the post of Clerk in the year 1974. She worked as Clerk till mid 1975. Thereafter she was appointed as Craft Teacher in Balashram. She discharged her duties as Craft Teacher upto mid 1977. In the meantime, since the post of Clerk fell vacant, petitioner was appointed on fixed pay on 19.8.1975. Respondent No.4 was absorbed as a Clerk and she worked in this capacity till July, 1977. She was absorbed as a Clerk on 12.7.1977. The petitioner, who was working as a Clerk on fixed pay in Balwari with effect from 19.8.1975, was posted on the vacant post of Clerk and granted the regular pay scale with effect from 21.12.1978. Respondent No.4 made a representation against the regular appointment of petitioner dated 21.12.1978. Thereafter Departmental Review Committee met on 16.7.1981 and reviewed the previous order whereby the petitioner was appointed as a Clerk on regular basis with effect from 21.12.1978 and decided to appoint the petitioner against this post with effect from 1.12.1978. Memorandum Annexure R-3/1 was issued on 16.7.1981 whereby respondent No.4 was 3 granted seniority above the petitioner and later on was also given senior scale. According to the petitioner, she approached the erstwhile Himachal Pradesh Administrative Tribunal by way of O.A. No. 3483/2006. The same was directed to be treated as representation to the Chairman of the respondent-Board on 7.12.2006. Thereafter, the Chairman passed impugned office order Annexure A-6 on 6.2.2007. 2. Mr. P.P. Chauhan has strenuously argued that his client was entitled to be ranked senior to respondent No.4 and should have been granted the senior scale before her. 3. Mr. R.P. Singh, learned Asstt. Advocate General, Mr. Dilip Sharma and Mr. Virender Verma have supported the issuance of letter dated 6.2.2007. According to Mr. Dilip Sharma there is gross delay in filing the present petition. He then contended that the cause of action had arisen to the petitioner on the basis of memorandum dated 24.7.1981 but the earlier original application No.3483 of 2006 was filed only in the year 2006, which was directed to be treated as representation by the Tribunal to the Chairman of the respondent-Board on 7.12.2006. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 4 5. It is evident from the facts enumerated hereinabove that respondent No.4 was appointed as Balsevika on 18.5.1972 and has worked in the same capacity till 26.6.1974. Thereafter, she was appointed as a Clerk in the year 1974 and worked as such till mid 1975. She was appointed as Craft Teacher with effect from 21.6.1975 till 11.7.1977 and she was absorbed back in Balwari as a Clerk on 12.7.1977. In the meantime, petitioner was appointed as a Clerk on a fixed salary on 19.8.1975 and on regular basis on 21.12.1978. Respondent No.4 had made a detailed representation, which led to convening of Departmental Promotion Committee on 16.7.1981 whereby the earlier decision to appoint petitioner on 21.12.1978 was reviewed and respondent No.4 was appointed as a Clerk with effect from 1.12.1978 and was granted senior scale. 6. Mr. P.P. Chauhan has strenuously argued that since the seniority list was not prepared, respondent No.3 could not release the senior scale to respondent No.4. A bare perusal of Annexure R-3/1 makes it abundantly clear that the decision was taken to rank respondent No.4 above the petitioner. Petitioner ought to have challenged the order dated 24.7.1981 immediately. He only assailed this decision by way of 5 O.A. No. 3484/2006, which was highly belated. The Tribunal, without considering that there was delay and that the petition was filed beyond the period of limitation, decided to treat the petition as representation to the Chairman of the respondent- Board. It appears that the Tribunal was swayed by the letter dated 29.11.2001 issued by the Director, Social and Women’s Welfare. The Director has also not taken into consideration at the time of sending communication to the Chairman of the respondent- Board on 29.11.2001 that the matter was highly belated and the same could not be raked up after 19 years. The representation made by the petitioner vide Annexure A-5 dated 7.12.2006 was rejected by the respondent- Board on 6.2.2007 by a self-contained and speaking order. The Chairman has taken into consideration the entire service record of the petitioner and respondent No.4 while rejecting the representation on the ground of limitation as well as on merits. In fact, respondent No.4 had been working in a regular pay scale as a Clerk in the Balwari since 26.6.1974 and thereafter worked as Craft Teacher and again as Clerk. Petitioner has only been appointed, that too, on fixed salary on 19.8.1975 and, thus, could not claim seniority over respondent No.4. The Court is of the considered view that the 6 present petition is barred by delay and laches and the petitioner cannot be permitted to rake up the controversy of determination of seniority after 29 years. It is settled law by now that settled things cannot be unsettled, more particularly, when it pertains to the seniority on the basis of which the incumbents have already been promoted. 8. Their Lordship of the Hon’ble Supreme Court in C. Jacob versus Director of Geology and Mining and another, (2008) 10 SCC 115 have held that the courts cannot direct to consider stale claim and it should be circumspect in issuing such direction as it ultimately leads to consideration of case on merits at subsequent stages of litigation as if the cause of action stood revived due to fresh consideration. Their Lordships have further held that it is open to the department to reject a stale case on the ground of delay alone without examining merits. Their Lordships have further held that reply given to an individual does not give rise to fresh cause of action or acknowledgement of jural relationship. Their Lordships have held as under: “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 7 obligations of parties. Little do they realize 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. 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 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, 8 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.” 9. Thus, the petitioner will not get cause of action from the date when his case was recommended by the Director on 29.11.2001 or when the representation was rejected on 6.2.2007. The cause of action will relate back to 24.7.1981 whereby the rights of the parties were crystalised. 10. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus M.K. Sarkar, (2010) 2 SCC 59 have held 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. Their Lordships have further held that issue of limitation or delay 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. Their Lordships have held as under: “14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his 9 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 vs. Director of Geology and Mining & Anr. - 2009 (10) SCC 115: "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 realize 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 can not 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 10 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 `state' 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 of 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.” 11. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus A. Durairaj (dead) by LRs, 2011 (3) SLR 96 have held as under: “14. This is a typical case where an i employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v. M.K. Sarkar [2010 (2) SCC 58] and held as follows: 11 "The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. X X X X X 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 can not 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. 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. It 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 of 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." 12 We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the respondent for retrospective promotion from 1976, on the ground of delay and laches.” 12. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. No costs. (Justice Rajiv Sharma), Judge. 29.6.2011 *awasthi*