IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2855 of 2010 1. HARIDEO JHA S/O LATE SATYADEO JHA R/O VILL. AND P.O.- SIBIPATTI, P.S.- RAJ NAGAR, DISTT.- MADHUBANI AT PRESENTLY WORKING IN THE OFFICE OF AFTER CARE HOME GAI GHAT, PATNA Versus 1. THE STATE OF BIHAR THROUGH ITS PRINCIPAL SECRETARY, DEPTT. OF SOCIAL WELFARE, PATNA SECRETARIAT, PATNA 2. THE DIRECTOR, SOCIAL WELFARE, BIHAR, PATNA 3. THE DEPUTY DIRECTOR, WELFARE, MAGADH DIVISION, GAYA 4. THE DISTRICT WELFARE OFFICER-CUM-SUPERINTENDENT REMAND HOME, GAYA 5. GOVIND PRASAD AGRAWAL S/O NOT KNOWN NIGH GUARD, RAMAND HOME ARRA 6. JAI MANGAL RAI S/O NOT KNOWN COOK-CUM-ATTENDANT, C/O DISTRICT WELFARE OFFICER, SARAN, CHAPRA 7. RAS BIHARI SINGH S/O NOT KNOWN PHYSICAL INSTRUCTOR-CUM-DARWAN, REMAND HOME, BETTIA, DISTT.- WEST CHAMPARAN 8. HIRA LAL MANJHI S/O JANGI MANJHI ANUSEVAK, C/O HEADMASTER, STATE SCHEDULED CASTE RESIDENTIAL HIGH SCHOOL, HATHUA, DISTT.- GOPALGANJ ----------- 2. 26.08.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The claim in this application is for regularisation from the date of initial appointment and not from the date that the regularisation has been granted i.e. 28.4.2005. The petitioner has filed a representation for shifting back his date of regularisation more than four years later on 7.9.2009 only. Counsel for the petitioner submits that direction may be given to dispose off the representation. The Court cannot lose sight of the fact that any direction today for the relief as sought is bound to have repercussions on seniority and other service related issues upon those who may have marched forward and the petitioner did not protest. There is bound to be a cascading effect for others in service. Delay in service matters has been considered vital in AIR 1999 SUPREME COURT 1510 "B. S. Bajwa v. State of Punjab" holding at paragraph 7 in the relevant extract as follows:- 2 “7...........It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance.this alone was sufficient to decline interference under Article 226 and to reject the writ petition.” If the petitioner has filed a representation this Court only expects the respondents to dispose the same. Any order passed by the respondents on such representation shall not condone the delay on part of the petitioner in having sought relief belatedly after four years of his regularisation so as to enable him to found a fresh cause of action on any fresh order that may be passed on the representation, which order shall remain circumscribed by the law laid down in (2008) 10 SCC 115 (C. Jacob Vs Director of Geology and Mining & another). “8. .... 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 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. 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 parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and 3 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 directed (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.” The petitioner accepted the order of regularisation with effect from 28.4.2005 and availed the benefit of status conferred along with other service benefits. It is not his case that he accepted the benefit under protest. Having availed and enjoyed the benefit which the regularisation conferred, retaining the 4 benefit, he seeks to question the very same order conferring the benefit. The petitioner is precluded from doing so. In AIR 1975 SC 1058 (Rani Inder Kumari Vs State of Rajasthan & ors) it has been held at paragraph 10 as follows:- “10. The petitioners cannot be allowed to blow hot and cold in the same breath. Right to the compensation, of whatever nature or content, flowed from the abolition of the cash jagirs under the Act. Acceptance of the compensation under the Act for the full length of the period of twelve years completely negatives the scope of attack upon the abolition of the grant. The foundation of the compensation is the abolition of the cash jagirs. Section 3 (2) under which the compensation is available is integrally connected with Section 3 (1) which has abolished the cash jagirs from a specified date and it is only on such abolition that compensation is rendered possible. Acceptance of compensation, therefore, gives a quietus to the claim to have the Act adjudged as ultra vires. The petitioners cannot eat a cake and have it. At any rate the petitioners have approached the court after inordinate delay and even then after enjoying the full benefit under the Act. The petitions, therefore, cannot be entertained.” The writ application stands disposed. Snkumar/- (Navin Sinha,J.)