IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15953 of 2009 1. SUSHIL KUMAR S/O LATE MUDRIKA LAL DAS MOH- SHANKARPURI SADPURA NI, CHAK P.S. KAJI MOHAMMADPUR, DISTT. MUZAFFARPUR Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER CUM SECRETARY NIRMAN BHAWAN, PATNA 2. THE CHIEF SECRETARY GOVT. OF BIHAR, PATNA 3. THE ENGINEER IN CHIEF ROAD CONSTRUCTION DEPTT., NIRMAN BHAWAN, PATNA ----------- 2. 04.01.2010 Heard learned Counsel for the petitioner and the learned Counsel for the State. The writ application raises claims for promotion as Assistant Director and Deputy Director from 1977 and 1989 respectively. Assailing the impugned order dated 30.4.2009 it is submitted that only the nomenclature of the post was changed but the actual benefits of the promotional post was not given. The petitioner is stated to have superannuated on 31.1.2004.The writ application is completely silent on any legal remedy pursued by him for his claim for promotion while he was in service. It is well settled that mere filing of representation, as presently claimed, is not sufficient to explain delay. Even otherwise the pleadings are completely lacking in the writ petition substantiated by documentary evidence of the matter being pursued by him even through representation in his service career. It appears that the petitioner came to this Court three years after his superannuation in CWJC No. 8959 of 2007 with the present claim leading to issuance of the impugned order rejecting his claim. The petitioner did not press his earlier writ petition on merit but simply sought a direction for disposal of his representation. The issues of delay in the nature of his claim etc. 2 obviously therefore did not come up for consideration before this Court. On facts, the claim appears to be highly belated relating back to the years 1977 and 1989. In so far as the order of this Court in CWJC No. 8959 of 2007 is concerned, it does not grant fresh avenues to the petitioner, infusing new life in his belated claim in pursuance of any order passed by the respondents thereafter. The Supreme Court in (2008) 10 SCC 115 (C. Jacob Vrs Director of Geology and Mining and another) describing the modus of “representation” has observed at Para 8 to 11, 14 and 15 as follows:- “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 the 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 requeasting that he may be taken back to service. Normally, there will be considerable delay in replying to 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 3 with a direction to consider and dispose of the representation. 9. The courts/tribunals proceeded 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 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 merit 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. 4 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 so 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 “ acknowledgement of a jural relationship” to give rise to a fresh cause of action. 14. We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and care in issuing direction for “consideration”. If the representation 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. 15. The present case is a typical example of “representation and relief”. The petitioner keeps quiet for 18 years after termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9.4.2002 he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the petitioner has already reached the age of superannuation the learned Single Judge grants the relief of pension with effect from 18.7.1982 by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 5 2005. We fail to understand how the learned Single Judge could find fault with the Department of Mines and Geology, for failing to prove that a termination made in 1982 was preceded by an enquiry in a proceedings initiated after 22 years, when the Department in which the petitioner had worked had been wound up as long back as in 1983 itself and the new Department had no records of his service.” In the light of the aforesaid law laid down by the Supreme Court this Court holds that the claim in the writ petition are highly belated and stale and that the earlier order of this Court in CWJC No. 8959/2007 does not enthuse fresh life or vest a fresh cause of action in the petitioner to assail the order dated 30.4.2009. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)