IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 2034 of 2008. Reserved on: 26.10.2009. Decided on: 27.10.2009. __________________________________________________ Shri Anant Ram Sharma … Petitioner. Versus The State of Himachal Pradesh 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 Respondent No. 1 : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G.. For Respondent No.2 : Mr. Shashi Shirshoo, Advocate. For Respondents No. 3 to 5 : Nemo. ___________________________________________________________ Rajiv Sharma, Judge. The petitioner has sought following reliefs by way of this petition: (a) The decision as contained in Annexure-PA (No. HPSEB (Sectt) 6-7/91-63018 dated 8th May, 1991) being unjust, illegal and ultra vires be set aside and quashed; (b) It be declared and directed that the applicant is legally entitled to claim seniority amongst Lower Division Clerks in the service of the respondent No.2 with reference to his continuous service with effect from 4th 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 December, 1967 and because thereof his interse seniority position vis-à-vis regular temporary incumbents of the grade has to be determined with reference to the said date of appointment; (c ) The respondent No.2 be further directed to ante-date applicant’s promotion as U.D.C. to 20.10.1978, the date respondent No.5 was promoted from in the light of assignment of seniority in the manner prayed in the foregoing sub para, and revise his seniority amongst U.D.Cs. on ground of such pre-ponement of promotion and in accordance with relevant regulations of 1975; (d) The respondents be further directed to produce the relevant record for the kind perusal of the Hon’ble Tribunal, and finally (e) The applicant be awarded the cost of the proceedings and he be granted, in addition, such other relief as the Hon’ble Tribunal may deem just, proper and appropriate in the facts and circumstances of the case. Brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Meter Ledger Clerk on 4.12.1967 on work charge basis. He was regularized in the year 1971. The provisional seniority list of Clerks, Meter Ledger Clerks and Cashiers in the pay scale of Rs. 110-250 was circulated on 7.4.1977 and the name of the petitioner was placed at serial number 725. The final seniority list was published on 26.3.1981. The private respondents were promoted to the post of U.D.Cs. on the basis of seniority list issued on 26.3.1981. Seniority list of U.D.Cs. was circulated on provisional basis on 17.10.1985. 3 According to Mr. P.P. Chauhan, the case of the petitioner in nutshell is that he should have been ranked above the private respondents in the seniority list of Clerks and Meter Ledger Clerks and Cashiers published on 26.3.1981 and also in the seniority list of the U.D.Cs. published on 17.10.1985. Mr. Shashi Shirshoo has argued that the present petition is barred by delay and laches. He also argued that the petitioner has been assigned correct seniority in the final seniority list of Clerks, Meter Ledger Clerks/Cashiers and also in the seniority list of U.D.Cs. He then contended that the seniority has been assigned on the basis of instructions contained in letter dated 6.11.1958 and Annexure R-1 dated 26.2.1974. I have heard the learned counsel for the parties and have gone through the record carefully. The petitioner was appointed Meter Ledger Clerk on work charged basis on 4.12.1967. The provisional seniority list of Clerks, Meter Ledger Clerks and Cashiers was issued on 7.4.1977. The final seniority list was published on 26.3.1981. He has made representations on 18.11.1977 and 15.3.1978 vide Annexures-PH and PI. He has not filed any representation immediately after the publication of final seniority list of Clerks, Meter Ledger Clerks and Cashiers dated 26.3.1981. The Board has issued provisional seniority list of the U.D.Cs. on 31.8.1985. He has for the first time made representation against the final seniority list dated 26.3.1981 and of U.D.Cs. issued on 31.8.1985 on 22.11.1985. He has sought that he be assigned serial number 361 in the seniority list of Clerks/Meter Ledger Clerks and serial number 483 instead of 957 in the seniority list of U.D.Cs. He was directed by the Board to 4 supply certain information on 29.1.1986. He supplied the information vide Annexure PL dated 1.3.1986. Thereafter, the petitioner remained silent for three years and made a representation on 4.9.1989 only. The same was rejected by the Board vide Annexure-PA on 8.5.1991. The petitioner ought to have challenged the final seniority list of Clerks, Meter Ledger Clerks and Cashiers issued on 26.3.1981 within a reasonable period. He has for the first time made representation against this final seniority list after the publication of provisional seniority list of U.D.Cs. on 31.8.1985. He has rather made a combined representation against the seniority list published on 26.3.1981 and 31.8.1985. He was directed to supply the information which he supplied on 1.3.1986. He did not take any effective step between 1986 and 1989. He made belated representation on 4.9.1989 which was rejected by the Board on 8.5.1991. It is settled law by now that the seniority and promotion orders should be assailed within a reasonable period of six months to one year. In the present case the petitioner has assailed final seniority list of Clerks, Meter Ledger Clerks and Cashiers dated 26.3.1981 and provisional seniority list of U.D.Cs. dated 31.8.1985 on 5.5.1992 by way of this petition. He has waited for eleven long years to assail the seniority of Clerks, Meter Ledger Clerks and Cashiers and seven years as far as the seniority list of U.D.Cs. is concerned. It is also clarified that the petitioner in fact has not specifically challenged the seniority lists issued on 26.3.1981 and 31.8.1985. He has only prayed that he be assigned correct seniority. It is settled law by now that the Courts cannot quash the orders if the same are not placed on record and specifically 5 challenged. The petitioner ought to have challenged the seniority lists specifically by placing them on record of this case. Further, the case of the petitioner is that he should have been assigned seniority from the year 1967. The seniority list has been issued on the basis of Annexure-RA dated 12.3.1974 and decision dated 6.11.1958. Respondent No.3 was initially appointed on work charged basis on 4.9.1966. The respondent-Board after deducting three years’ service has worked out the effective date of R-3 as 3.11.1969. Respondent No.3 was regularized on and with effect from 18.1.1971. The petitioner was engaged on 4.12.1967 and after deducting three years’ service, the effective date in his case was worked out as 3.12.1970. He was also regularized with effect from 18.1.1971. Respondents No. 4 & 5 were working on regular cadre on and with effect from 9.7.1969 and 6.12.1967. It is in these circumstances that Clerks, Meter Ledger Clerks and Cashiers recruited on regular basis during the years 1967-1970 were ranked senior to the work charge persons brought on regular cadre with effect from 18.1.1971. Mr. P.P. Chauhan has vehemently argued that since the representation made by the petitioner was rejected on 8.5.1991, there is no delay or laches. Their Lordships of the Hon’ble Supreme Court in C. Jacob versus Director of Geology and Mining and another, (2008) 10 SCC 115 have held that repeated representations do not create fresh cause of action. The claim which has become dead or stale cannot be revived merely on the basis of the rejection of the representation belatedly. Their Lordships have held as under: 6 “8. 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 representation. 9. 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 7 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, 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. 13. Where an employee unauthorizedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of 8 dismissal/ removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back-wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back-wages. 14. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for `consideration'. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing `consideration' of such claims.” Though the present petition is barred by delay and laches, however, the Court in the interest of justice has also gone into the merits of the case, as noticed above. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. The Court while dismissing the petition has also taken into consideration the well settled principle that the settled things should not be unsettled at the belated stage. No costs. (Rajiv Sharma), J. October 27, 2009. (cr)