Shiv Kumar Gupta vs State Of U.P. And 4 Others
2022 Latest Caselaw 15970 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- WRIT - A No. - 17829 of 2022
 

 
Petitioner :- Shiv Kumar Gupta
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Santosh Kumar Jaiswal
 
Counsel for Respondent :- C.S.C.,Abhishek Srivastava,Adarsh Bhushan
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Heard learned counsel for the petitioner, Sri Abhishek Srivastava, learned counsel appearing on behalf of the respondent no.2 and Sri Adarsh Bhushan, learned counsel who appears on behalf of the respondent nos.3 to 5.

This petition has been filed with the following prayers:-

"i) issue, a writ, order or direction in the nature of mandamus commanding the respondent no.3 to 5 to refix the petitioner's service after inclusion of service rendered in work charge basis from 28.04.1969 to 31.12.1971.

ii) issue, a writ, order or direction in the nature of mandamus commanding the respondents to pay the arrear of pension and other retiral benefits after inclusion of service rendered on work charge basis during the pendency of instant writ petition before this Hon'ble Court."

It is the case of the petitioner that he worked in the respondent-Department since 1969 up to 1971 and thereafter was regularized w.e.f. 01.01.1972. He retired from the post of S.S.O. (T.G.-2) on 31.07.2001. A pension payment order was issued on 22.07.2022 and the petitioner has been getting pension which has been appropriately divide from time to time looking into the account the Pay Commission recommendation as adopted by the Department. The petitioner's service rendered on work charge basis for two years, had not been counted for revision of his pension. This Court has passed and order in Writ A No.9826 of 2019 (Dr. Om Prakash Gupta and 11 others Vs. State of U.P. and 2 others) that the adhoc service of the medical officers be counted for the purposes of qualifying service of pension. Once the judgment of the Court was rendered on 07.08.2019, the petitioner came to know and he has approached the respondents personally several times for inclusion of service rendered by him on work charge basis for grant of retiral benefits. However representation was made by him in this regard only on 30.05.2022.

Sri Abhishek Srivastava, learned counsel appearing on behalf of the respondent no.2 as raised a preliminary objection saying that adhoc employment is not equivalent to the work charge employment. The judgment which was relied upon by the petitioner, relates to the medical officers engaged on adhoc by the State Government. It does not relate to the work charge employment. It has been submitted that the petitioner retired in 2001 and pension payment order was issued to him in 2002 and he has been getting pension regularly. Now, he wants inclusion of two years of service rendered by him on work charge basis.

Learned counsel for the respondent has placed reliance upon the judgment of Supreme Court dated 23.08.2013 rendered in State of Uttaranchal and another Vs. Sri Shiv Charan Singh Bhandari and others (Civil Appeal Nos.7328-7329 of 2013) and has pointed out paragraph nos.13, 14, 15, 16, 17 and 18. The relevant extract of the said paragraphs is being quoted hereinbelow:-

"13. ...In C. Jacob v. Director of Geology and Mining and another[1], 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, the court has expressed thus: -

"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."

14. In Union of India and others v. M.K. Sarkar[2], this Court, after referring to C. Jacob (supra) has ruled that 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.

15. From the aforesaid authorities it is clear as crystal that even if the 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[3], the Court took note of the factual position and laid down that when nearly for two decades the respondent-workmen therein had remained silent mere making of representations could not justify a belated approach.

16. In State of Orissa v. Pyarimohan Samantaray[4] it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik[5].

17. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others[6], a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana[7] and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.

18. In State of T.N. v. Seshachalam[8], this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: -

"....filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."

This Court finds that the petitioner is already getting pension. It is not as that he has been denied pension altogether on the ground that he has not rendered ten years of regular qualifying service as was the case in Prem Singh vs. State of Uttar Pradesh and others (AIR 2019 SC 4390) where employees who were regularized in pursuance of the Government's decision taken later on, could not be given pension because they had not rendered ten years of qualifying service required under the Rules. No case is made out to show interference as prayed for in this petition.

Accordingly, the writ petition is dismissed.

Order Date :- 4.11.2022

Vivek Kr.