Arun Kumar vs State Of U.P. Thru Secy. Forest And ...
2021 Latest Caselaw 8473 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2						             A.F.R.
 

 
Case :- SERVICE BENCH No. - 15499 of 2021
 

 
Petitioner :- Arun Kumar
 
Respondent :- State Of U.P. Thru Secy. Forest And Ors.
 
Counsel for Petitioner :- Shivam Sharma
 
Counsel for Respondent :- C.S.C.,Shikhar Anand
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ravi Nath Tilhari,J.

1. Heard Sri Shivam Sharma, learned counsel for the petitioner and learned Standing Counsel for the State.

2. The claim petition bearing No. 486 of 2019 has been rejected on the ground of limitation. The petitioner was initially appointed under the opposite parties vide order dated 29.07.1982 as Dispatcher in the pay-scale of Rs. 200-5-250-EB-6-260-EB-8-320 on temporary basis. His services were terminated without any notice.  The petitioner has continued as Dispatcher w.e.f. the date of his joining in the year 1982 itself.

3. During the course of argument, Sri Shivam Sharma, learned counsel for the petitioner fairly informed the Court that in the year 1991, the petitioner had preferred a writ petition before this Court bearing No. 6965 of 1991, which was dismissed for want of prosecution on 06.12.2012. This fact was not mentioned before the Tribunal nor has it been mentioned in the writ petition. Nevertheless, it has been brought to our notice by the counsel himself during arguments. Thereafter, the petitioner moved a representation on 07.09.2015, claiming entitlement to the post of Junior Clerk in the clerical cadre and seniority thereon with consequential benefits of promotion etc. This claim was apparently moved after 33 years of his appointment as Dispatcher. The petitioner was given the benefits of Dispatcher. The petitioner without disclosing the factum of having filed a writ petition before the High Court bearing no. 6965 of 1991, as noticed hereinabove filed a claim petition before the U.P. Public Service Tribunal at Lucknow bearing no. 2053 of 2015, which was disposed of with a direction to the concerned opposite party to decide petitioner's representation dated 07.09.2015.

4. We have perused the said judgment dated 25.07.2017, though it is not under challenge before us, we are constrained to observe that the Tribunal did not delve into the question of limitation, which every court is bound to see irrespective of the fact as to whether objection has been raised or not by any opposite party. The claim petition was filed in the year 2015 seeking a declaration to treat him as substantively appointed clerk w.e.f. 29.07.1982. The cause of action, if at all, arose in the year 1982, but, the Tribunal did not go into this question, instead, it simply passed an order for disposal of petitioner's representation dated 07.09.2015. Now in pursuance thereof on 18.07.2018, an order was passed by the Chief Conservator of forest/Director, Rajya Anusandhan Sansthan, U.P., Kanpur rejecting the claim of the petitioner. This order was challenged by the petitioner by means of writ petition before this Court bearing no. 1538 (SS) of 2019, as is mentioned in the judgment of the Tribunal, which was dismissed on 21.01.2019 on the ground of lack of territorial jurisdiction. The petitioner thereafter filed the abovementioned claim petition bearing no. 486 of 2019 before the Tribunal at Lucknow. The claim petition has been declined by the Tribunal on the ground of limitation. Relevant extract of the judgment are quoted hereinbelow:-

"14. It is clear that the petitioner was appointed as Dispatcher in the Forest department in 1982. It was in compliance of the Government order dated 08.06.1982, whereby a list of visually handicapped persons was circulated amongst various department for appointment in available vacancies forthwith. The letter specifies the posts against which identified persons were directed to be appointed. However, it did not specifically mention whether they were to be appointed against cadre or ex-cadre posts. The petitioner was appointed in place of Sri Dorji, who too was included in the list circulated by the Government vide its G.O dated 8.6.1982.

15. As the Government order did not clearly state whether the appointment was to be made on cadre or ex-cadre posts, the choice was left to the departments to appoint the nominated persons in available departmental vacancies. The fact that the petitioner was appointed against a vacant post of a Junior Clerk does not automatically bestow upon him the rights of a junior clerk. He was specifically appointed as a Dispatcher which was an ex-cadre position. The petitioner did not raise any objection to this appointment and joined service. It is also clear from record that in 1986, when other employees were regularised, the petitioner did not raise any objection. His first representation in this regard is dated 07.09.2015, which is about 33 years after his initial appointment and 29 years after regularisation of the other clerks with whom he is claiming parity. During the intervening period, he raised no objection which gives support to the claim of the respondents that the matter is heavily time barred. Even in 2014, when he first approached the Hon'ble High Court in Writ Petition no. 2464(S/S) of 2014, his prayer was not to seek regularisation from the date of his substantive appointment but only for grant of ACP. The Court had granted him that benefit and he was subsequently, vide order dated 30.10.2014, provided ACPs, he had requested.

16. The grant of ACP assumes that the petitioner was treated as regular employee, as the benefit of ACP is available only to regular employees, who have completed varied years of satisfactory service. Thus, the substantive claim of regularisation of the petitioner has already been recognised and granted. It is also significant that ACP is a substitute mechanism for promotions. The respondents have unambiguously stated that the petitioner has been provided all the service benefits that he was entitled to as an ex-cadre employee. The petitioner has not stated anywhere that he has been deprived of pensionary benefit too.

17. The Claim Petition, filed by the petitioner at the Tribunal, bearing no 2053 of 2015, does not extend the limitation provided in Section-5 of the Tribunal Act, 1976. It is settled law that delayed or repeated pensionary representations do not extend the period of limitation. In the instant case, the cause of action clearly arose on 29-07-1982, when petitioner was initially appointed as dispatcher on an ex-cadre post or at best on 31.03.1986, when 9 junior clerks with whom he claimed parity, were regularised and he was left out. The delay in representing or seeking judicial redressal cannot help the petitioner in obtaining the benefit of extending the bar of limitation. This principle has been categorically and unequivocally upheld by the Hon'ble Supreme Court in State of Tripura and others vs Arabinda Chakraborty and others (2014) 2 SCC (L&S) 300, The Hon'ble Supreme Court held that:

"In our opinion, the suit is hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of representation.

"In Jacob vs. Director of Geology and Mining and another (2008) 10 SCC 115 the Hon'ble Supreme Court has held that a mere disposal representation by any authority under orders of a Court or Tribunal to consider and decide that representation does not extend the period of limitation automatically. The Court observed as follows:

"When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person direceted) examines the matter on merits, being under the impression that failure to do may amount to disobedience. Whien 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.

18. In light of the above, we find that the claim of the petitioner is clearly barred by limitation and hence not maintainable.

5. On bare perusal of the judgment of the Tribunal, we find that it is based on the decisions of Hon'ble Supreme Court on the point of limitation. The Tribunal has referred to the decisions of Hon'ble Supreme Court in the case of State of Tripura and others vs. Arabinda Chakraborty and Others [(2014) 2 SCC (L & S) 300], wherein it has been held that simply by making a representation when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit the extension of period of limitation by mere filing of the representation. In another decision rendered by Hon'ble Supreme Court in the case Jacob vs. Director of Geology and Mining and Another [(2008) 10 SCC 115] which has also been relied by the Tribunal, it has been held that 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 would 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 fresh cause of action.

6. The case at hand is fairly covered by the aforesaid pronouncements and we are of the opinion that the Tribunal had rightly rejected the claim on the ground of it being barred by limitation and there is no reason for this Court to interfere with its judgment.

7. It is made clear that though the claim of the petitioner to the post of Junior Clerk is barred, however, as far as the issue of sanction of post of Dispatcher etc is concerned, which is said to be pending before the State Government, as has been observed in the order dated 18.07.2018, the same still survives before the State Government, which the Government is obliged to decide at the earliest, but, the present proceedings do not relate to the post of Dispatcher, therefore, we do not find any error in the judgment of the Tribunal and accordingly dismiss this writ petition, especially as, the writ petition filed by the petitioner in this regard in the year 1991 before this Court was dismissed for want of prosecution and the petitioner did not take any steps thereafter to get it restored. The petitioner may pursue the matter before the State Government so far as the post of Dispatcher is concerned.

9. Copy of this judgment be sent to Chairman, U.P. Public Service Tribunal for circulating the same amongst all its Members, so that the learned Members while deciding the claim petition, in the event of disposing of the claim petition with a direction to decide the representation of the petitioner, should not overlook the point of limitation, which they are otherwise obliged to consider, otherwise, this leads to unnecessary complications and revival of stale claims, which is not appropriate.

Order Date :- 23.7.2021

Nitesh

( Ravi Nath Tilhari, J. ) ( Rajan Roy, J.)