IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7300 of 2010 1. Ashok Kumar Mandal S/O Shri D.L.Mandal R/O Vill.- Belha Via Goghardiha, P.S. Phulparas, Distt.- Madhubani At Present R/O Shankartola Vatika, Mohanpur Punaichak, Patna Posted As Economic Investigator, District Industry Centre, Jehanabad Versus 1. The State Of Bihar, Through The Principal Secretary, Department Of Industry, Govt. Of Bihar, Patna 2. Director Industry, Department Of Industry, Govt. Of Bihar, Patna 3. Additional Director, Industry, Department Of Industry, Govt. Of Bihar, Patna 4. Deputy Director Industry, Department Of Industry Govt. Of Bihar, Patna 5. Akhilesh Kumar S/O Not Known At Present Posted As Economic Investigator, District Industry Centre, Bhojpur, Ara ----------- For the Petitioner:- Mr. Banwari Sharma, Adv. Mr. Shiv Kumar, Adv. For the State:- Mr. Rajiv Kumar Singh, Adv. For the Respondent no. 5:- Mr. Praveen Kumar, Adv. ------------------ 4. 29.09.2011 Learned counsel for respondent no. 5 is permitted to correct typographical error in the surname of the father. Heard learned counsel for the petitioner, the State and for respondent no. 5. The petitioner is aggrieved by the order dated 16.2.2010 passed by the respondents in pursuance of the directions of this Court in C.W.J.C. No. 6436 of 2009. In the writ application the petitioner had challenged the seniority list by which respondent no. 5 was placed above him. The Court held that the representation against the position in the gradation list had been disposed without reasons on 30.9.2008. Directions were given for passing a 2 fresh order whereafter the impugned order has been passed, rejecting his claim again. Learned counsel for the petitioner submits that the recommendation of the Bihar State Subordinate Service Selection Board dated 17.11.1988 was common with regard to the petitioner and respondent no. 5. The petitioner stood at serial no. 1 as per his merit position. Respondent no. 5 stood at serial no. 3. Without justification, acting arbitrarily, the respondents issued the appointment letter of respondent no. 5 on 14.2.1989. That of the petitioner was unjustifiably delayed and issued on 4.9.1989. The contention therefore is that if both the petitioner and respondent no. 5 stood at par in a common recommendation, a mere difference in the dates of issuance of the appointment letters cannot affect seniority specially when it is attributable not to any fault on part of the petitioner, but to the official respondents alone. Reliance has been placed on a judgment of this Court in C.W.J.C. No. 9022 of 1994 (Chawdhury Imran Raza Vs. State of Bihar). It was next submitted that the impugned order dated 16.2.2010 refers to a gradation list dated 2.8.1996. The petitioner in his representation dated 3 23.6.2005 has made disclosure with respect to the dates commencing from 1.9.1996 how he was objecting to the gradation list. The petitioner cannot be stated to be indolent when he kept pursuing the matter by representation. The cause of action has accrued to him when the respondents based on that gradation list have made promotions particularly of respondent no. 5 from the original post of Junior Statistical Assistant to the next promotional post of Economic Investigator. Till such time that promotions were not made from the erroneous gradation list the petitioner was not under any compulsion to challenge the same as it can reasonably be said that he legitimately believed that his objections were still under consideration. Separate counter affidavits have been field on behalf of the State and respondent no. 5. The Court on 22.9.2011 had required the State to file a counter affidavit disclosing specific reasons for the justification in acting upon a common recommendation made by the selection Board by issuance of appointment letter to respondent no. 5 earlier in time. No such affidavit has been filed on behalf of the State. However respondent no. 5 has brought on record in his 4 supplementary counter affidavit a copy of a file noting dated 12.1.1989 containing a discussion that the persons recommended had been called with their original documents on 30.12.1988 in pursuance of which respondent no. 5 and another Shree Nand Kumar Prasad only appeared on that date with the original documents. To this Court that is sufficient material to distinguish the petitioner from respondent no. 5. They both formed a class in the original recommendation. But no sooner that the petitioner lagged behind thereafter in the course and sequence of events, it cannot be said that differentiation between him and respondent no. 5 was done arbitrarily for reasons attributable to the respondents alone causing hostile discrimination. The moment that the petitioner faulted in not appearing on 30.12.1988 with the original documents he and respondent no. 5 fell in separate class. The submission on behalf of the petitioner that the file noting presented is incomplete and records certain further discussions and that the Court should make further enquiry into the matter does not appeal to the Court for more than one reason. The cause of action for the writ petition is 5 claimed on the gradation list dated 13.11.2008 which states that the objections had been considered before finalization. It has been pointed out on behalf of the respondent no. 5 that this gradation list talks of seniority in the rank of Industries Extension Officers. It is further submitted on behalf of the respondent no. 5 that the name of the petitioner or the respondent does not figure in this list. A person who comes to the Court seeking relief, carries the onus of placing full materials to demonstrate his right and the injustice done to him. The Court shall decide matters on basis of the materials that are placed before it. There is no occasion for the Court to enter into any speculative consideration or discussion. If the petitioner and the respondent no. 5 were part of the common recommendation and the petitioner stood above the latter in order of seniority in the recommendation, there had to be sufficient justification for issuance of the appointment letter first to the latter failing which issues would arise of arbitrariness and that the mere delayed issuance of an appointment letter, a fortuitous event cannot affect seniority. But if the recommendation was not final and itself stated that the appointing authority may 6 satisfy itself further after calling for original documents from the candidates and the petitioner faulted in the same falling behind respondent no. 5 in sequence of events, there shall exist sufficient justification for the distinction in their dates of appointment as 4.9.1989 and 14.2.1989 respectively. If the separate dates of the appointment letter and joining are sustainable in law the reasons being attributable to the petitioner himself, the Court is not persuaded on the speculative suggestion on behalf of the petitioner that the file noting presented was incomplete to make further roving enquiry at his behest. A file noting may itself not create any rights in the parties. But the Court can certainly look into it, as in the present case, to determine if the petitioner has been able to demonstrate a cause of action, specially when the only ground of arbitrariness and hostile discrimination is answered in the file noting and which he is unable to controvert. It was for the petitioner to demonstrate and satisfy the Court that the file noting produced by the respondent no. 5 was not conclusive but a part of discussion only. The writ petition therefore clearly suffers 7 from gross delay when the petitioner seeks to reopen these issues in the present writ application in the year 2010. That he may have come to this Court earlier in C.W.J.C. No. 6436 of 2009 is of no avail to him as the present discussion does not appear to have come up for consideration therein. The only issue concerned was the disposal of his representation by a non speaking order. If the cause of action was already stale, a mere observation to dispose his representation by a speaking order, did not amount to condoning the earlier delay as held in (2010) 2 SCC 59 (Union of India Vs. M.K. Sarkar) at Paragraphs 14 to 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 Mining “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 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 8 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 matter and should not direct consideration or reconsideration. If the court or tribunal 9 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.” Secondly, if the gradation list for promotion to the post of Economic Investigator from that of Junior Statistical Assistant was finalized on 2.8.1996, formal orders issued on 13.1.1998 and promotions granted to them on the post of Economic Investigator with effect from 5.9.1992, the cause of action was clearly available to the petitioner on 2.8.1996 and certainly on 13.1.1998. It has been submitted on behalf of the respondents that subsequently both of them have been promoted to next promotional post of Class-II, i.e., Project Manager. There is no challenge to the same laid out by the petitioner and neither have these developments been brought on record by him. The issue whether the petitioner had filed objections or not to the gradation list before finalization on 2.8.1996 is not only barred by gross inordinate delay but has become purely academic now. The impugned therefore rightly holds that 10 the claim of the petitioner was inordinate delayed and belated by approximately 13 years if not more. Delay is a vital aspect, specially in service matters. A belated service claim, more particularly with regard to matters of seniority creates turbulence in calm waters. It unsettles a settled state of affairs. The consequent result is of perceived illegality generating litigation. Consequently those with perceived injustice and those apprehending injustice if any interference is done by the Court are to be both found in the corridors of the Court rather than on the desk of their Secretariat. The inevitable result also is of the work being affected. The Supreme Court as far back as (1975) 1 SCC 152 (P.S. Sadasivaswamy Vs. State of T.N.) had cautioned at Paragraph-2 with regard to entertaining delayed and belated claims of seniority : “2 ……………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 11 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. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal. The Court finds no merit in this application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)