IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.662 of 2009 Mohan Kumar . Versus The State Of Bihar & Ors . ----------- 2. 28.06.2011 Heard learned counsel for the petitioner and the State. The petitioner, a Constable in the Bihar Military Police-13 was subjected to a departmental proceeding for unauthorized absence. The defence was disbelieved and a finding of guilt returned. It led to an order of discharge upheld in a statutory appeal. The petitioner questioned the order in C.W.J.C. No. 9068 of 2002. After some argument leave was sought to withdraw the application to prefer a “mercy appeal” before the Home Commissioner who was the appellate authority. The writ application was dismissed as withdrawn. Learned counsel for the petitioner sought to persuade the Court that the order of discharge in the nature of the allegations was too harsh a punishment and sought to invoke certain judgments in his support. He next submitted that the matter was argued by another counsel earlier who perhaps could not place matters properly before the Court. It was acknowledged that the original appellate order 2 not interfered with in C.W.J.C. No. 9068 of 2002 was statutory in nature and that there was no statutory provision for a mercy appeal thereafter. It is a matter of common practice that when the Court is persuaded to interfere with an order, rather than to invite an adverse verdict, the matter is withdrawn to enable the aggrieved to take his opportunity and chance before the authorities. It is more than apparent from the order dated 9.9.2008 in C.W.J.C. No. 9068 of 2002 that the matter was argued on merits. Once the Court was not persuaded to interfere, leave was sought to withdraw the application to pursue a non statutory remedy of what was euphemistically described as a “mercy appeal”. If the prayer for mercy had appealed to the administrator so much for the good of the petitioner. If his extra statutory remedy seeking mercy has not found favour, it cannot vest legal right in the petitioner to re-agitate the fresh order as there was no legal right in the petitioner to prefer a mercy appeal. Mere argumentative novelty may not be sufficient ground to reconsider a matter already decided as held in (1980)3 SCC 719 (Ambika Prasad Mishra Vs. State of U.P.) at Paragraph-5 as follows:- 3 “5. …………. Every new discovery or argumentative novelty cannot undo or compel reconsideration ……….” The merits of the claim of the petitioner achieved finality in C.W.J.C. No. 9068 of 2002 when this Court declined interference. The modus operandi adopted by the petitioner in withdrawing his writ petition in absence of a legal foundation for his claim, then representing and seeking to found a cause of action on the fresh order passed has all been considered by the Supreme Court in (2010) 2 SCC 59 (Union of India & Ors. Vs. M.K. Sarkar) holding 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: (SCC pp. 122-23, para 9) “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 not have got on 4 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.” 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 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.” The present was not even such a case. There was no direction to dispose any representation. Merely because the respondents, as a model 5 employer, being the State, may have acted only reasonably in disposing of a representation which they were under no legal obligation to do shall not vest a cause of action in the petitioner where none existed originally. The writ application is dismissed. P. Kumar (Navin Sinha, J.)