IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.02.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOS.25045, 29686 AND 29689 OF 2006 S.Arunasigamalai ..Petitioner in W.P.No.25045 of 2006 S.Veluchamy ..Petitioner in W.P.No.29686 of 2006 S.Vijayaraghavan ..Petitioner in W.P.No.29689 of 2006 Vs. 1.The Secretary to Government, Home Department, Secretariat, Chennai-9. 2.The Director General of Police, Admirality House, Madras-2. 3.Durairaj (3280) Inspector of Police, Trippadur Town, ..Respondents in North Arcot District all these petitions These writ petitions have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration to declare that the Rule 9 of the Adhoc Rules issued in G.O.Ms.No.1258 Home Department dated 9.5.73 is ultra vires of the rule under Articles 14 and 16 of the Constitution of India and to quash G.O.Ms.No.3(D)/386 Home Department, dated 26.11.1996 of the first respondent and order in Rc.No.75699/NGB.I(1)/96, dated 24.7.1996 of the second respondent, to quash G.O.3(D) No.242, dated 27.09.1996 of the first respondent and also to quash G.O.Ms.No.3(D)/ 15, Home Department, dated 5.2.1997 of the first respondent and consequently, direct the respondents to refix the seniority of the applicant above the third respondent with all consequential benefits. For Petitioners : Mr.A.Kalaiselvan For Respondents : Mrs.Sneha, GA https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER Heard both sides. In view of the interconnection between these three writ petitions, they were heard together and a common order is passed. 2.In W.P.No.25045 of 2006, the petitioner originally filed O.A.No.3756 of 1997 before the State Administrative Tribunal, challenging the orders, dated 9.5.1973, 24.7.96 and 26.11.1996. The order, dated 9.5.1973 is the Government Order in G.O.Ms.No.1258, Home Department, in which adhoc rule for temporary post of Grade I Constable was issued. Pursuant to the said adhoc rule, several persons were promoted. It is the case of the petitioner that the claim of the petitioner was overlooked and juniors were promoted. Thereafter, the petitioner sent a representation on 05.10.1995. He was directly recruited as Grade I Police Constable on 01.02.1972 and thereafter, he was promoted as Head Constable on 30.05.1979 and subsequently, on 31.12.1981. It was only on 05.10.1995, he sought for refixing the seniority above his juniors, namely S.Nva John, Durairaj, Arumugam, Viapuri, C.Ramasamy, Subramanian and Alaguraj and to give further promotion on par with his juniors. Immediately, after sending his representation, he filed original application within 10 days before the State Administration Tribunal, being O.A.No.6279 of 1995. The Tribunal, at the admission stage itself, disposed of the O.A. and issued direction, dated 16.10.1995, asking the respondent State to consider the case of the petitioner. Pursuant to the direction and after consulting the Chief Office, the State Government issued G.O.3(D) No.386, Home Department, dated 26.11.1996, rejecting the case of the petitioner. It is against this order, the petitioner moved second round of litigation in present O.A.No.3756 of 1997. Though the Administrative Tribunal is circumscribed by Section 21 of the Administrative Tribunal Act, the petitioner got over limitation by stating that his case was rejected by the State Government on 26.11.1996 and therefore, he was well within time. The Tribunal accepted the same and ordered notice to the respondent. The respondents filed a detailed counter affidavit, dated 13.1.1999, setting out circumstances under which others were promoted. On abolition of the Tribunal, the matter stood transferred to this court and was renumbered as W.P.No.25045 of 2006. 3.W.P.No.29686 of 2006: In this case also, the petitioner challenged the Government order, dated 9.5.1973 in G.O.Ms.No.1258 Home Department as well as the subsequent order of rejection by the State Government by G.O.3(D) No.242, dated 27.9.1996. Here also, the petitioner sent a representation dated 10.01.1996. Thereafter, within one month, he moved Tribunal in O.A.No.659 of 1996. The Tribunal, by an order, dated 5.2.1996, directed the State Government to dispose of the representation. Pursuant to the direction, G.O.3 (D)No.242, dated 27.09.1996 came to be passed. It is this order, which was challenged by the petitioner in O.A.No.4181 of 1997 before the Tribunal. The respondent has also filed a counter affidavit. On abolition of the Tribunal, the matter stood transferred to this court and renumbered as W.P.No.29686 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 4.W.P.No.29689 of 2006: The challenge is to the order, dated 9.5.1973 in G.O.Ms.No.1258, Home Department and the rejection by the State Government by G.O.Ms.No.3(D)/15 Home Department, dated 5.2.1997. In this case also, the petitioner did not question the original overlooking of seniority, but chose to send a representation on 7.9.1995 and thereafter, he moved Tribunal within one month with O.A.No.7647 of 1995. The Tribunal directed the petitioner's representation to be disposed of. It is pursuant to the said direction, G.O.3(D)No.15, dated 5.2.1997 was passed. Since the petitioner's claim was negatived, he once again filed O.A.No.4178 of 1997. A Counter affidavit was filed by the respondents. On the Tribunal being abolished, the said O.A. stood transferred to this court and was renumbered as W.P.No.29689 of 2006. 5.The learned counsel for the petitioners has stated that the applications are well within limitation, since the impugned orders are dated 26.11.1996, 27.09.1996 and 05.02.1997 respectively. But, the petitioners' claim for seniority arose in the year 1973 after adhoc rules were published by the State and that the Government Order, dated 9.5.1973 is also under challenge. Admittedly, the petitioners, after getting promoted to the post of Sub Inspector of Police, chose to send representations only after a period of 2 years, namely on 05.10.1995, 10.01.1996 and 7.9.1995 respectively and in order to revive the lost cause of action, they cleverly moved Tribunal with O.A.Nos.6279 of 1995, 659 of 1996 and 7647 of 1995 and the Tribunal has disposed of the O.As. without notice to the Government and has given direction to the Government to dispose of the representations. It was pursuant to the direction issued by the Tribunal, the Government passed detailed orders, which are also impugned in these writ petitions. In this regard, it is necessary to refer the latest decision of the Supreme Court reported in 2008 AIR SCW 7233 (C.JACOB VS. DIRECTOR OF GEOLOGY & MINING & ANR.). In paragraph 6, the Supreme Court deprecated the practice of reviving the cause of action by filing a representation and getting the Tribunal to dispose of the said representation asking the Authority to consider the same. It is necessary to refer paragraphs 6,7 and 8 of the said judgment, which reads as follows: "6.Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his https://hcservices.ecourts.gov.in/hcservices/ representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. 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. 7.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. 8.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, 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." 6.The petitioners, by merely filing O.As. before the Tribunal and getting their 1995 and 1996 representations disposed of, cannot https://hcservices.ecourts.gov.in/hcservices/ revive the cause of action, which arose in the year 1973. In the light of the above decision, the Tribunal ought not have entertained the case of the petitioners. In any event, since the issue has come before this court, this Court, even though is not trapped by Section 21 of the Administrative Tribunal Act, cannot entertain the writ petitions, if there is delay and laches on the part of the Government Servant. In view of the above, these writ petitions stand dismissed. However, there shall be no order as to costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Secretary to Government, Home Department, Secretariat, Chennai-9. 2.The Director General of Police, Admirality House, Madras-2. + 1 c.c. to Mr. A. Kalaiselvan, Advocate. S.R.No.5901. + 1 c.c. to The Government Pleader. S.R.No.5780. W.P.NOS.25045, 29686 AND 29689 OF 2006 LA (CO) GSK 13.02.2009. https://hcservices.ecourts.gov.in/hcservices/