State Of U.P. Through Prin. Secy. ... vs Rishi Raj Singh & Another
2017 Latest Caselaw 4116 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 

 
1. Case :- SERVICE BENCH No. - 1004 of 2015
 
Petitioner :- State of U.P. Through Principal Secretary Agriculture Department Lucknow
 
Respondent :- Rishi Raj Singh and Another
 
Counsel for Petitioner :- C.S.C.,Shreesh Kumar
 
Counsel for Respondent :- Rajeiu Kumar Tripathi
 
2. Case :- SERVICE BENCH No. - 1039 of 2015
 
Petitioner :- State of U.P. Through Principal Secretary Agriculture Department Lucknow
 
Respondent :- Mahipal Singh and Another
 
Counsel for Petitioner :- C.S.C.,Shreesh Kumar
 
Counsel for Respondent :- Rajeiu Kumar Tripathi
 
3. Case :- SERVICE BENCH No. - 1122 of 2015
 
Petitioner :- State of U.P. Through Principal Secretary Agriculture Department Lucknow
 
Respondent :- Pratap Narain Katiyar and Another
 
Counsel for Petitioner :- C.S.C.,Shreesh Kumar
 
Counsel for Respondent :- Rajeiu Kumar Tripathi
 
4. Case :- SERVICE BENCH No. - 1123 of 2015
 
Petitioner :- State of U.P. Through Principal Secretary Agriculture Department Lucknow
 
Respondent :- Lal Babu Singh and Another
 
Counsel for Petitioner :- C.S.C.,Shreesh Kumar
 
Counsel for Respondent :- Rajeiu Kumar Tripathi
 
5. Case :- SERVICE BENCH No. - 1631 of 2014
 
Petitioner :- State of U.P. Through Principal Secretary Agriculture Department Lucknow
 
Respondent :- Mangala Prasad Singh and Another
 
Counsel for Petitioner :- C.S.C.,Shreesh Kumar
 
Counsel for Respondent :- B.M.Singh,Dr.L.P.Mishra
 
6. Case :- SERVICE BENCH No. - 1681 of 2015
 
Petitioner :- State of U.P. Through Principal Secretary Agriculture Department Lucknow
 
Respondent :- Adesh Kumar Bishnoi and Another
 
Counsel for Petitioner :- C.S.C.,Shreesh Kumar
 
Counsel for Respondent :- Rajieu Kumar Tripathi
 
7. Case :- SERVICE BENCH No. - 4207 of 2017
 
Petitioner :- State of U.P. Through Principal Secretary Agriculture Department Lucknow
 
Respondent :- Mukesh Kumar Srivastava and 2 others
 
Counsel for Petitioner :- C.S.C
 
Counsel for Respondent :- 
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ravindra Nath Mishra-II,J.

1. Heard Sri Shreesh Kumar, learned counsel for petitioner and Sri Rajieu Kumar Tripathi, learned counsel for respondents.

2. All these writ petitions have been filed by State of U.P. through Principal Secretary, Agriculture being aggrieved by common judgment and order dated 31.07.2014 passed by State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal").

3. In first four writ petitions Tribunal has decided four Claim Petitions no. 1681 of 2013, 1682 of 2013, 1683 of 2013 and 1684 of 2013. Writ Petition No. 1631 (SB) of 2014, though involve common questions of fact and law, but therein, judgment has been rendered by Tribunal on 13.03.2014 in Claim Petition No. 1463 of 2013. Similarly in Writ Petition No. 1681 (SB) of 2015 and Writ Petition No. 4207 (SB) of 2017, facts and issues are common, but same have arisen from judgments dated 15.01.2015 in Claim Petition No. 807 of 2014 and 26.05.2015 in Claim Petition No. 1653 of 2013 respectively.

4. Tribunal has allowed aforesaid claim petitions and directed petitioner, State of U.P., to consider claimant-respondents for promotion to the post of U.P. Agriculture Grade-I w.e.f. 05.12.1991 i.e. the date on which junior was promoted and to give all consequential benefits including seniority and promotion on higher posts.

5. Facts in brief giving rise to the present dispute are as under;

6. Claimant-respondents entered service in U.P. Agriculture Service Class-II (hereinafter referred to as "UPAS") and thereafter were promoted on different posts as per the chart given here under:-

Name of claimant

Date of appointment in UPAS Class-II

Date of promotion in UPAS Class-I

Date of promotion as Joint Director

Date of promotion as Additional Director

Date of promotion as Director

Rishi Raj Singh

26.11.1981

17.04.2003

02.12.2005

06.07.2012

-

Mahipal Singh

26.11.1981

17.04.2003

03.02.2006

06.07.2012

-

Pratap Narain Katiyar

26.11.1981

17.04.2003

13.02.2006

06.07.2012

-

Lal Babu Singh

26.11.1981

17.04.2003

13.02.2006

-

-

Mangala Prasad Singh

25.02.1980

30.06.2005

30.12.2008

-

Adesh Kumar Bishnoi

25.02.1980

17.08.1995

15.12.2005

30.12.2008

04.07.2012

Mukesh Kumar Srivastava

01.04.1981

17.04.2003

02.12.2005

06.07.2012

-

7. One Diwakar Upadhyaya, regularized in UPAS Class-II vide order dated 28.08.1990 w.e.f. 30.10.1975, was promoted in UPAS Class-I in 1991. Thereupon four persons namely Dr. Suresh Chand Pandey, Dr. Jai Prakash Shukla, Govind Singh and Ashok Kumar, who were appointed in UPAS Class-II after recommendation of U.P. Public Service Commission (hereinafter referred to as "Commission") vide appointment letter dated 06.12.1988, filed Claim Petition No. 2963 of 1998 claiming that the persons including Diwakar Upadhyaya, regularized on 28.08.1990, were promoted in UPAS Class-I service on 05.12.1991 hence they are entitled for promotion from such date. The claim petition was decided exparte vide judgment and order dated 11.10.2001 passed by Tribunal, directing petitioner to consider those four claimants namely Dr. Suresh Chand Pandey, Dr. Jai Prakash Shukla, Govind Singh and Ashok Kumar for promotion in UPAS Class-I with effect from the date Diwakar Updhyaya was promoted in Class-I with all consequential benefits. An application for setting aside exparte judgment was filed by petitioner with a delay of about nine months i.e. on 15.07.2002. On that ground itself it was rejected by Tribunal vide judgment and order dated 05.03.2003. Thereafter petitioner challenged judgment dated 11.10.2001 before this Court in Writ Petition No. 374 (SB) of 2004. This Court observing that no reason was given by State as to why counter affidavit was not filed, declined to interfere with exparte judgment and writ petition was dismissed vide judgment dated 15.03.2004. The operative part of judgment of this Court reads as under:-

"While coming to this Court challenging the order passed against the State, the State forgets that the applicant or the claiming who has agitated the matter for issuance of a decree, his fruits of decree cannot be set to naughty because of the own admission of the State that they do not work properly or their officers are inefficient incompetent for incapable of performing their work. There is no explanation by the State for not filing the written statement before the Tribunal despite sufficient time and opportunity being granted to them. Equally there is no explanation for not filing the application for setting aside the exparte order and filing the same after eight months of the exparte judgment. The State has miserably failed to explain the reason for not approaching the Tribunal and filing the application for setting aside the exparte judgment within reasonable time. The laches are not properly explained and therefore, we dismiss the writ petition accordingly." (emphasis added)

8. The judgment dated 11.10.2001, of Tribunal in the case of Dr. Suresh Chand Pandey and three others attained finality after Special Leave Petition No. 7884 of 2004 was dismissed by Supreme Court vide order dated 08.12.2008, though it left the question of law open. The order of Supreme Court reads as under:-

"Keeping the question of law open, Special Leave Petition is dismissed on the facts of the case."

9. Claimants claiming benefit vis-vis date of promotion of Diwakar Updhayaya and Ashok Kumar filed aforesaid claim petitions which have now been allowed by Tribunal only on the ground that since juniors have already been given promotion therefore, claimants are also entitled to be promoted from the same date with all consequential benefits.

10. Learned Standing Counsel has challenged all the aforesaid judgments of Tribunal on the ground that UPAS Class-II is a service having different cadres. The incumbents were appointed in different cadres having no common seniority. Hence question of considering that a junior was promoted, irrespective of the fact, whether claimants and alleged junior are in the same cadre or different cadre is thoroughly misconceived and contrary to the statutory rules. He also urged that Tribunal has erred in law in not looking into this aspect of matter.

11. Sri Rajieu Kumar Tripathi, learned counsel appearing for all the claimants in these writ petitions as also Sri Shreesh Kumar, learned counsel appearing for State of U.P. fairly stated that UPAS Class-II is governed by United Provinces Agricultural Service Class-II Rules, 1934 (hereinafter referred to as "UPAS Class-II Rules 1934"). Rule 2 provide Status and functions of service and reads as under:-

"The United Provinces Agricultural Service, Class II, is a provincial service, constituted to include certain gazetted posts in the Agriculture Department primarily those of Accounts Officer, Divisional Superintendents, Head Master of an Agricultural School, Assistant Professors, Research Assistant, Assistant Agricultural Engineer and Superintendent of Gardens." (emphasis added)

12. Rule 4 provides strength of cadre and it has five sections with descriptions of different posts. Rule 4 is reproduced as under:-

"The sanctioned strength of the service is strength of cadre;

Section

Designation of post

Number

Accounts

1. Personal Assistant to Director

2. Accounts officers

3. Inspector of Accounts and Stores

General

4. Divisional Superintendents and Assistant Professor of Agriculture

5. Head Masters of Agricultural Schools

Teaching and Research

6. Assistant Professor for (i) Botany

(ii) Agricultural Chemistry and

(iii) Zoology including Entomology

7. Research Assistants

Agricultural Engineering

8. Second Agricultural Engineer

9. Assistant Agricultural Engineers

Gardening

10. Superintendent of Gardens

Total

Provided that, subject to the provisions of rule 40 of the Civil Services (Classification, Control and Appeal) Rules, 1930, the Government may:

(a) Leave unfilled or hold in abeyance any post without thereby entitling any member of the service or of the Subordinate Agricultural Service to compensation; and

(b) By notification increase the cadre by creating permanent or temporary posts from time to time as may be found necessary."

13. Rule 5 provides sources of recruitment and reads as under:-

"Sources of recruitment (1) Subject to the provisions of rule 6, recruitment to the service, whether in substantive or in officiating vacancies or to temporary posts, shall be made by the Government, either- (a) by direct appointment, after consulting a permanent Board of Selection constituted in such manner as the Government may from time to time by executive order direct, or

(b) by promotion from- (i) the Subordinate Agricultural Service, or

(ii) ministerial posts in the Agriculture Department.

(2) The persons mentioned in the Schedule to these rules will be deemed (i) to be members of the Service with effect from the date on which these rules came into force, and (ii) to have been recruited in the manner noted against each:

Provided that Sarwa Shri D.D. Dhand and K.L. Jain will be deemed to be the members of the Service with effect from the date of creation of two posts of Assistant Agricultural Engineers in accordance with this note of the Legislative Council."

14. Rule 6 talks of proportion of recruitment from each source and reads as under:-

" (1) (a) Recruitment to the post of Personal Assistant to the Director will be made at the discretion of the Government either (i) by direct appointment, or (ii) from amongst other members of the Service:

Provided that appointments to a leave vacancy not exceeding six weeks in duration may be made by promotion from ministerial posts in the Agriculture Department.

(b) Recruitment to other posts in Section A of the cadre will be made at the discretion of the Government either (i) by direct appointment, or (ii) by promotion from ministerial posts in the Agriculture Department.

(2) Recruitment to other posts in Section B of the cadre will be made either (i) by direct appointment, or (ii) by transfer from Section C or (iii) by promotion from Section A and C of the Subordinate Agricultural Service:

Provided that recruitment to substantive vacancies in this section shall be so arranged that ordinarily two-thirds of the posts are held by members recruited by promotion.

(3) Recruitment to posts in Section C of the cadre will be made at the discretion of the Government either (i) by direct appointment, or (ii) by transfer from Section B, or (iii) by promotion from Sections A and C of the Subordinate Agricultural Service.

(4) Recruitment to posts in Section D of the cadre will be made at the discretion of the Government either (i) by direct appointment, or (ii) by promotion from Section D of the Subordinate Agricultural Service.

(5) Recruitment to posts in Section E of the cadre will be made at the discretion of the Government either (i) by direct appointment, or (ii) by promotion from Sections A and C of the Subordinate Agricultural Service.

(6) A member holding a post in one Section of the Service may be appointed at the discretion of the Government to another post in the same section."

(emphasis added)

15. We find that recruitment to each section is governed by Rules, separately.

16. Section B, General Section was subsequently re-designated as "Development Section". Section C i.e. Research and Teaching Section was subsequently re-designated and sub divided in four sub cadres i.e. Research and Training Section in (i) Agronomy (ii) Chemistry (iii) Botany (iv) Plant Protection.

17. Academic qualifications for recruitment/appointment are specified in Rule 10 and that is also vis a vis relevant to section concerned. It reads as under:-

"10. Academic qualifications -(1) No person shall be recruited by direct appointment to a post in Section A of the cadre other than the post of P.A. to the D.A. unless he has (a) passed either the Subordinate Accounts Service Examination conducted by the Auditor General to the Government of India or holds that diploma of a Chartered Accountant issued by the Indian Accountancy Board and (b) acquired practical experience of accounts work for at least three years in the office of an Accountant General of in the Finance Department under a local Government or the Government of India.

(2) No person shall be recruited by direct appointment to a post in Sections B and C of the cadre unless he has obtained a Bachelor's degree in Science or Agriculture of a recognized University and has had at least two years' post-graduate training in Agriculture or in the particular work associated with the post to be filled.

(3) No person shall be recruited by direct appointment to a post in Section D of the cadre, unless he (a) has obtained a degree or diploma of a recognized Engineering institution, (b) has a sound working knowledge of electricity, steam and internal combustion engines, agricultural machinery and well-sinking. Preference will be given to a person who (a) had held charge of for not less than three years (apprenticeship excluded) of works involving the construction of tube-wells, installation of pumping plant and agricultural machinery under an experience of accounts and office organization connected with engineering works.

(4) No person shall be recruited by direct appointment to a post in Section E of the cadre unless he (a) has obtained a Bachelor's degree in Science or Agriculture and (b) had had three years practical experience of gardening of which two must have been in the tropics.

(5) When recruitment is made by direct appointment especially to the post of P.A. to the D.A. importance will be attached to any special qualifications or experience befitting a candidate for the particular post to be filled." (emphasis added)

18. Promotions are also to be made section wise as provided in Rule 16 which reads as under:-

"Recruitment by promotion- (1) When recruitment is to be made by promotion to Section A of the cadre the Director of Agriculture will draw up a list of such members of the ministerial establishments in the Agricultural Department as possesses the necessary knowledge and experience of accounts and are otherwise considered fit for promotion to the vacancy. When recruitment is to be made by promotion to any other section of the cadre, the Director will draw up a list arranged in order of seniority of the required number of members of the Subordinate Agricultural Service holding posts in Sections A, C and D and thereof- as the case may be- as are eligible for promotion to the vacancy and have been in that service for not less than fifteen years. The Director shall submit such list with his recommendation about each person included therein to the Secretary to Government, Agriculture Department.

(2) From amongst the persons mentioned in such list the Government will approve the required number for appointment to the Service after consulting, if necessary, an official committee appointed for the purpose.

(3) Recruitment will be made primarily on merit: seniority will count where merits are equal." (emphasis added)

19. In exercise of powers under Rule 4(2) of UPAS Rules 1934, Government added following posts in different sections vide different notifications as detailed below;

(A) By Notification dated 17.12.1968, 28 posts were made part of Section B of Rule 4 in the following manner:-

^^mRrj izns'k d`f"k lsok] f}rh; Js.kh dks lsok fu;ekoyh ds fu;e 4 ds micU/k ds miokD; ¼ch½ ds vUrxZr mRrj izns'k ds jkT;iky vkns'k nsrs gSa fd fuEufyf[kr inksa dks mRrj izns'k d`f"k lsok] f}rh; Js.kh] lsD'ku ^ch* ds laoxZ esa lfEefyr fd;k tk;A

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

dae la0 in dk uke laoxZ esa lfEefyr fd, x, inksa dh la[;k

LFkkbZ vLFkkbZ dqy

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

1- ftyk d`f"k vf/kdkjh 51 3 54

2- Hkwfe laj{k.k vf/kdkjh 3 61 64

3- lgk;d d`f"k foi.ku

vf/kdkjh 2 8 10

4- iz{ks= izcU/k vf/kdkjh & 10 10

¼QkeZ eSustesUV vkfQlj½

5- izkfof/kd vf/kdkjh]

,xzksukeh & 5 5

6- vkpk;Z] d`f"k fo|ky; 3 & 3

7- lgk;d foi.ku vf/kdkjh 1 & 1

8- mi funs'kd] izlkj f'k{kk

,oa izf'k{k.k ds lgk;d 1 & 1

9- izkfof/kd vf/kdkjh ¼cht½ 1 & 1

10- d`f"k vf/kdkjh ¼QkeZ½ 1 & 1

11- twV fodkl vf/kdkjh 1 & 1

12- frygu izlkj vf/kdkjh & 1 1

13- lgk;d funs'kd fu;kstu & 2 2

14- lgk;d funs'kd ¼iwfrZ½ & 1 1

15- lgk;d funs'kd iSdst & 1 1

16- d`f"k vf/kdkjh iwfrZ & 1 1

17- d`f"k vf/kdkjh ¼eawxQyh½ & 2 2

18- lgk;d ;kstuk vf/kdkjh & 1 1

¼vflLVsaV izkstsDV vkfQlj½

19- cht fodkl vf/kdkjh & 1 1

20- ftyk d`f"k lwpuk vf/kdkjh & 1 1

21- fo"k; fo'ks"kK ¼,xzksukeh½ & 1 1

22- rEckdw izlkj vf/kdkjh & 1 1

23- izlkj fo'ks"kK] 'kkgtgkWaiqj & 1 1

24- QkeZ eSustj nkSjkyk esjB & 1 1

25- izlkj vf/kdkjh ¼flapkbZ½ & 1 1

26- izHkkjh vf/kdkjh] Hkwfe

Hkwfe laj{k.k izf'k{k.k dsUnz & 2 2

27- izkfof/kd vf/kdkjh ¼,p-oh-ih-½ & 1 1

28- MsM dSVy ;wfVykbts'ku

vkfQlj & 1 1

64 108 179

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&**

(B) By Notification dated 08.12.1976 post of Chief Enforcement Officer was made part of Section B of Rule 4 of UPAS Rules 1934;

^^mRrj izns'k d`f"k lsok oxZ&2 fu;ekoyh ds fu;e 4 ¼ch½ esa iznRr vf/kdkjksa dk iz;ksx djrs gq, jkT;iky egksn;] eq[; izorZd vf/kdkjh ¼phQ bUQkslZesUV vkfQlj½ ds ,d LFkk;h in dks mRrj nsrs gSaA mDr in mRrj izns'k d`f"k lsok Js.kh&2 lsD'ku ^ch* esa lfEefyr djus dk vkns'k nsrs gSaA mDr in mRrj izns'k d`f"k lsok] Js.kh&2 lsD'ku ^ch* esa LFkk;h o`f) ds :i esa gksxkA**

(C) By Notification dated 15.06.1977 following posts were made part of Section B of Rule 4;

^^mRrj izns'k d`f"k lsok Js.kh&2 dh lsok fu;ekoyh ds fu;e 4 ds izfrcU/k ds miokD; ¼ch½ ds vUrxZr mRrj izns'k ds jkT;iky vkns'k nsrs gSa fd fuEufyf[kr inksa dks mRrj izns'k d`f"k f}rh; Js.kh lsD'ku ^ch* ds laoxZ ea lfEefyr fd;k tk;%&

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

dzekad in dk uke laoxZ esa lfEefyr fd;s x, inksa dh

la[;k

LFkkbZ vLFkkbZ dqy

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

1- Hkwfe laj{k.k vf/kdkjh 2 23 25

2- izkfof/kd vf/kdkjh 10 3 13

3- izkfof/kd vf/kdkjh 'kL; 1 & 1

4- iz/kkukpk;Z Hkwfe laj{k.k & 1 1

ijh{k.k dsUnz

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

13 27 40

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&**

(D) By Notification dated 08.08.1988 following posts were made part of Section B of Rule 4;

^^mRrj izns'k d`f"k lsok] Js.kh&2 dh lsok fu;ekoyh ds fu;e&4 ds izfrcU/k ds miokD; ¼ch½ ds vUrxZr mRrj izns'k ds jkT;iky vkns'k nsrs gSa fd fuEufyf[kr inksa dks mRrj izns'k d`f"k lsok] Js.kh&2 lsD'ku ^ch* ds laoxZ esa lfEefyr fd;k tk;%&

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

dz0la0 in dk uke laoxZ esa lfEefyr fd, x, inksa dh la[;k

LFkk;h vLFkk;h

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

1- e.Mh izf'k{k.k vf/kdkjh & 1

2- lgk;d funs'kd ¼lks;kchu½ & 2

3- lgk;d iz;kstuk vf/kdkjh & 1

4- lgk;d funs'kd ¼moZjd½ & 1

5- iz{ks= izcU/kd tequkckn & 1

6- cht mRiknu vf/kdkjh xksyk & 1

7- nygu fodkl vf/kdkjh & 7

8- d`f"k vf/kdkjh ¼frygu½ & 1

9- eSustj lhM izkslsflax bxkMk & 1

10- QhYM vkxsZukbZtj & 1

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&**

20. Rules 6 and 9 were substituted by Notification dated 28.01.1969 and substituted Rule 6(2) and 9 reads as under:-

Column 1

Column 2

Existing Rule

Rule as hereby substituted

6(2) Recruitment to posts in Section B of the cadre shall be made either (i) by direct appointment, or (ii) by transfer from Section C, or (iii) by promotion from Sections A and C of the Subordinate Agril. Service.

Provided that recruitment to Subordinate vacancies in this section shall be so arranged that ordinarily two-thirds of the posts are held by members recruited by promotion.

Recruitment to posts in Section B of the cadre shall be made either (i) by direct appointment, or (ii) by transfer from Section C, or (iii) by promotion from Sections A and C of the Subordinate Agril. Service.

Provided that recruitment to Subordinate vacancies in this section shall be so arranged that ordinarily one-half of the posts are held by members recruited by promotion.

Amendment of Rule 9

9. No person shall be recruited by direct appointment to a post-

(a) in Section A of the cadre unless he be less than 40 years of age.

(b) In any other Section of the cadre unless he has attained the age of 23 years and has not attained the age of (i) 30 years if he holds an appointment in Government service, and (ii) 28 years otherwise, on the first day of August of the year in which he is approved for appointment.

Provided that exemptions from the maximum limits may be granted by the Government in special cases.

9. No person shall be recruited by direct appointment to a post-

(a) in Section A of the cadre unless he be less than 40 years of age.

(b) In any other Section of the cadre unless he has attained the age of 23 years and has not attained the age of (i) 30 years if he holds an appointment in Government service, and (ii) 28 years otherwise, on the first day of January following the date on which the post is advertised;

Provided that exemptions from the maximum limits may be granted by the Government in special cases.

21. By UPAS Class II (Amendment) Rules, 1977 Rule 13 was deleted.

22. Dr. Suresh Chandra Pandey, Dr. Jai Prakash Shukla, Govind Singh and Ashok Kumar were the persons appointed in UPAS Class II Section 'C' (sub-cadre Plant Protection Branch).

23. Sri Diwakar Upadhayaya was promoted on adhoc basis in UPAS Class II Section 'C' (Plant Protection Branch) on 30.10.1975 and regularized vide order dated 28.08.1990 under the provisions of U.P. Regularisation of Adhoc Promotion (on the posts of within the purview of the Public Service Commission) Rules, 1988.

24. The claimant-respondents whose matters are before us were appointed/promoted in the Section B (Development Branch).

25. All the claim petitions were filed in 2013 by claimant-respondents in respect whereof we are concerned in this bunch of writ petitions. It is admitted case of claimant-respondents that Diwakar Upadhayaya was promoted in UPAS Class-I in 1991. The four persons i.e Dr. Suresh Chand Pandey, Dr. Jai Prakash Shukla, Govind Singh and Ashok Kumar filed claim petition in 1998 which was decided by Tribunal vide judgment dated 11.10.2001 and thereagainst writ petition was also dismissed by this Court on 15.03.2004 and Special Leave Petition was dismissed on 08.12.2008. Claimant-respondents sat over the matter and during this entire period did not approached Tribunal for redressal of their grievance though cause of action arose in 1991 when Diwakar Upadhayaya was promoted in UPAS Class-I on 05.12.1991. It is not stated anywhere that promotion of Diwakar Updhayaya was not in the knowledge of claimant-respondents, when he was so promoted. Claimant-respondents however seeks to explain accrual of cause of action when Ashok Kumar was promoted vide order dated 05.09.2013.

26. In our view, when other vigilant persons had approached Court and judgment is passed in their favour that judgment will not explain extraordinary delay and laches. If there is a statutory period of limitation, such judgment would not result in revival of period of limitation already expired. Hence claim petition filed by claimant-respondents was patently barred by limitation prescribed under Section 5 (1) (b) U.P. Public Services (Tribunals) Act, 1976 (hereinafter referred to as "Act 1976").

27. In Rup Diamonds, M/s. Vs. Union of India AIR 1989 SC 674, Supreme Court considered a case where petitioner wanted to get the relief on the basis of the judgment of the Supreme Court wherein a particular law had been declared ultra vires. Court rejected the petition on the ground of delay and latches observing as under:

"There is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided." (emphasis added)

28. In State of Karnataka and others Vs. S.M. Kotrayaya and others 1996 (6) SCC 267, Supreme Court rejected the contention that a petition should be considered ignoring the delay and laches on the ground that it has been filed just after coming to know about relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches.

29. Same view has been reiterated by Court in Jagdish Lal and others Vs. State of Haryana and others AIR 1997 SC 2366, observing as under:

"Suffice it to state that appellants kept sleeping over their rights for long and elected to wake-up when they had impetus from Veer Pal Chauhan and Ajit Singh's ratio... desperate attempts of the appellants to re-do the seniority, had by them in various cadre... are not amenable to the judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well." (emphasis added)

30. In State of U.P. and others Vs. Arvind Kumar Srivastava and others 2015 (1) SCC 347, Court considered in detail the question, "whether in a given case, approach of Tribunal and High Court was correct in extending benefit of earlier judgment of Tribunal, which had attained finality as it was affirmed till Supreme Court, whereas appellants in that case contend that respondents therein did not approach Court in time and were fence-sitters and, therefore, not entitled to get benefit of said judgment by approaching judicial forum belatedly", and finally drew conclusion observing:

"Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim." (emphasis added)

31. Thus, it is evident that a person cannot take benefit of judgment procured by a diligent person approaching Court within time or reasonable time after the cause of action had arisen.

32. In the present case, limitation is prescribed in Section 5 (1) (b) with reference to cause of action and cause of action cannot be subsequent judgment. When claimant-respondents are claiming promotion from the date when Diwakar Updhayaya was so promoted, even a representation if made, would not extend or revive period of limitation. Section 5 (1) (b) 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)

33. 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 09.12.2006 and subsequent once were 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, when on 02.02.2006 selection grade was allowed to others ignoring claimant-respondent, limitation expired on expiry of one year from the date of said order and Claim Petition, therefore, was apparently barred by limitation.

34. 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.

35. 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 Court or Tribunal to consider 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)

36. 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.

37. 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.

38. 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.

39. We may also point out that by virtue of Section 5(1)(b) of Act, 1976, provisions of Limitation Act, 1963 (hereinafter referred to as "Act, 1963") have been made applicable as if Reference is a Suit filed in a Civil Court and that being so, even Section 5 of Act, 1963 will not apply for the reason that delay in filing Suit cannot be condoned by taking recourse to Section 5 of Act, 1963 as it is applicable to proceedings and appeals but not to Suit. For the purpose of Suit, it is only if some period may be excluded in computing limitation under various provisions of Act, 1963, that may benefit a person who has filed Suit; or, in the present case, Reference before Tribunal after expiry of period of limitation, otherwise Section 5 will not apply.

40. Section 5 of Act, 1963 applies to the stages subsequent to institution of a valid Suit and those proceedings which are construed as continuation of Suit and not for seeking condonation of delay in filing a time barred Suit. Even when the suit proceedings have come to an end, in execution proceedings also Section 5 shall not be applicable. A Suit if otherwise is barred by time and is not saved by other provisions of Sections 4 and 6 to 24 of Act, 1963 then it shall not be entertainable by the Court and has to be dismissed in view of the obligation created vide Section 3 of Act, 1963. Section 5 specifically says that it is applicable to an appeal or applications but not to a suit.

41. This Court in Smt. Jagwanta Vs. Smt. Nirmala and others, 1982 AWC 591 has specifically said that Section 5 does not apply to suits. A similar view has also been taken in Badri Narayan Sharma Vs. Panchayat Samiti, Dhariawad, AIR 1973 Raj. 29.

42. The question of limitation is an obligation on the Court since Court is restrained from entertaining a claim petition if it is barred by limitation. Hence it was for the Tribunal to look into this aspect of matter but in all the judgments under challenge in this bunch of writ petitions, we do not find that Tribunal has looked into this aspect of matter at all.

43. Moreover, Tribunal has totally ignored to consider that all the claimant-respondents were appointed in different cadres then that of Diwakar Updhayaya and Dr. Suresh Chand Pandey and three others. The question of claiming promotion by contending that their juniors have been promoted could have arisen only when there would have been a common seniority list of officers of UPAS Class-II wherein Diwakar Upadhayaya and four others were shown junior in seniority to claimant-respondents but that is not so. The claimant-respondents and Diwakar Upadhayaya and other four persons belong to different cadres as we have pointed out above, hence question that juniors have been promoted does not arise. We find that Tribunal has completely ignored this aspect of matter, hence in our view judgments of Tribunal, impugned in these writ petitions, cannot be sustained.

44. All the writ petitions are allowed. Impugned judgments of Tribunal challenged in these bunch of writ petitions are all set aside.

Order Date :- 8.9.2017

Pravin