State Of U.P. Through Secy. Deptt. ... vs Ram Kishore Nigam & Another
2017 Latest Caselaw 25 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 3
 
                                                                                                                         A.F.R.
 
Case :- SERVICE BENCH No. - 117 of 2014                        
 

 
Petitioner :- State Of U.P. and others
 
Respondent :- Ram Kishore Nigam and another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- C.S.C.,K.S.Bisht
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. None appeared on behalf of respondent though it has been called in revise. Hence we proceed to decide this matter after hearing learned Standing Counsel for petitioners.

2. The claimant-respondent filed claim petition No. 1125 of 2005 seeking a direction that he should be considered for promotion with effect from 17.9.1992 when his juniors Om Prakash and others were promoted. The aforesaid claim petition has been allowed by State Public Services Tribunal (hereinafter referred to as 'Tribunal') vide judgment and order dated 26.7.2013.

3. Apparently, it is evident from record that against aforesaid non promotion of the claimant-respondent, he made representation on 12.3.1993 and it reveals that no action was taken but the claim petition was filed after 12 years i.e. in 2005. Tribunal has not looked into the question as to whether claim petition was within limitation or not. The provision for limitation for filing Claim Petition before Tribunal under Section 5 of U.P. Public Services (Tribunals) Act, 1976 (hereinafter referred to as "Act, 1976") reads as under:

"5. Power and procedure of the Tribunal-

	(1)      (a)...........
 
	  (b) The provisions of the Limitation Act, 1963 (Act 36 of 1963) shall mutatis mutandis apply to reference under Section 4 as if a reference where a suit filed in Civil Court so, however, that:
 
(i) Notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year;
 

(ii) in computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor), in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded:

Provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference under Section 4 may be made within the period prescribed by that Act; or within one year next after the commencement of the Uttar Pradesh Public Services (Tribunals) (Amendment) Act, 1985 whichever period expires earlier:

Provided further that nothing in this clause as substituted by the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 1985 shall affect any reference made before and pending at the commencement of the said Act."

(emphasis added)

4. Limitation for filing Claim Petition before Tribunal under Section 5(1)(b)(i) is one year. Section 5(1)(b)(ii) provides that in computing period of limitation of one year, period taken when a representation, or appeal in accordance with Rules or Orders regulating the conditions of service was made and ending the date on which public servant has knowledge of final order passed on such appeal or representation, as the case may be, shall be excluded. Therefore period consumed in decision of an appeal, revision, representation or writ petition will be excluded only when such remedy is provided under Rules or Orders regulating conditions of service and availed by public servant and not otherwise. It is not shown to us, despite repeated query, as to under which provision of Rules or Orders regulating the conditions of service, the alleged representation dated 12.03.1993 was made. When there is no such provision under Rules or Orders regulating conditions of service, Section 5(1)(b)(ii) will have no application and hence limitation will be only one year from that date when cause of action arose. In the present case, the cause of action arose on 17.9.1992 when the juniors to the claimant-respondent were promoted ignoring him and limitation expired on expiry of one year from the date of said order and Claim Petition, therefore, was apparently barred by limitation.

5. Mere fact that subsequently representations were made and the same were directed to be decided by Tribunal will not revive period of limitation which has already expired.

6. In C. Jacob Vs. Director of Geology and Mining and another 2008 (10) SCC 115, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, Court has expressed its views as under:

"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."

(emphasis added)

7. In Union of India and others Vs. M.K. Sarkar 2010 (2) SCC 59, Court after referring to C. Jacob (supra) has ruled, 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.

8. From the aforesaid authorities it is clear as crystal that even if Court or Tribunal directs for consideration of representations relating to a stale claim or dead grievance, it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322, Court took note of the factual position and laid down that when nearly for two decades respondent- workmen therein had remained silent, mere making of representations could not justify a belated approach.

9. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1967 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330. The aforesaid authorities of Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479, Court held that it is well settled principle of law that delay defeats equity. 

10. The matter of limitation has not been considered by Tribunal though Claim Petition in 2005 was apparently barred by limitation. The impugned order passed by Tribunal therefore can not be sustained.

11. In the result, writ petition is allowed. The judgment and order dated 26.7.2013 passed by Tribunal in Claim Petition No. 1125 of 2005 is set aside and the claim petition filed by claimant-respondent No.1 is hereby dismissed.

Order Date :- 4.5.2017

prabhat