Uttarakhand High Court
Uttarakhand Public Services ... vs State Of Uttarakhand And on 28 March, 2023
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE SHRI VIPIN SANGHI
AND
HON'BLE JUSTICE SHRI ALOK KUMAR VERMA
28TH MARCH, 2023
WRIT PETITION (S/B) NO. 181 OF 2022
Between:
Rajendra Kumar ...... Petitioner
And
State of Uttarakhand and Others ......Respondents
Counsel for the Petitioner : Mr. Akshay Pradhan,
Advocate.
Counsel for the State/ : Mr. Vikas Pandey, Standing,
Respondents Counsel.
Upon hearing the learned counsel for the parties, this
Court made the following judgment :
(Per : Shri Alok Kumar Verma, J.)
By means of this writ petition, filed under Article
226 of the Constitution of India, petitioner has assailed the
judgment dated 07.01.2022, passed by learned
Uttarakhand Public Services Tribunal, at Dehradun (in
short, "the Tribunal") in Claim Petition No.18/DB/2001,
titled, "Rajendra Kumar vs. State of Uttarakhand and
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Others", by which the said Claim Petition has been
dismissed as barred by limitation.
2. Brief facts of the case are that the petitioner was
appointed as Class IV employee on 02.08.1989 in Trade Tax
Department, Uttar Pradesh. After creation of State of
Uttarakhand, he had given his option for the State of Uttar
Pradesh cadre. On 23.10.2001, the list of employees,
allotted to the State of Uttarakhand cadre, was released.
The petitioner's name was not included in the said list. In
the month of March, 2003, petitioner sent his application for
changing his State cadre from Uttar Pradesh, to State of
Uttarakhand.
3. In the State of Uttarakhand, DPC was conducted for
promotion of the employees of Class IV to Class III for the
year 2004-2005. Vide letter No.836, dated 09.11.2006, the
State of Uttar Pradesh transferred the service of the
petitioner to the State of Uttarakhand. In the process of
promotion for the year 2007-2008, the petitioner did not
give his typing test. He communicated that he did not know
typing. He was promoted in the year 2012-2013, giving him
six months period to improve his typing speed. He was
finally promoted on 23.01.2013. He was promoted from the
date of the order. He was confirmed in service vide Order
dated 25.07.2015 w.e.f. 22.01.2015. He made a number of
representations to respondent no.2 for being notionally
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promoted to the post of Junior Assistant from the date his
juniors were promoted i.e. since the year, 2005. Office
Memorandum dated 30.03.2011, Office Memorandum dated
09.10.2013, Office Memorandum dated 29.03.2014 and
Office Memorandum dated 30.11.2015 were passed on the
representations of the petitioner, rejecting the same.
Petitioner's representation dated 24.10.2019 was also
rejected. Thereafter, the petitioner filed a Claim Petition
before the Tribunal with the following reliefs :-
"(i) To direct the respondents to issue order or
direction quashing the rejection orders dated
30.03.2011, 09.10.2013, 29.03.2014, 30.11.2015
and 24.10.2019.
(ii) To direct the respondents to grant promotion to
the petitioner w.e.f. 03.02.2005 i.e. the date when
his juniors were promoted to the post of Junior
Assistant/Clerk along with consequential benefits.
(iii) To give any other relief fit and proper in the
circumstances of the case.
(iv) To give cost to the petitioner."
4. Mr. Akshay Pradhan, learned counsel for the
petitioner contended that the petitioner has continued cause
of action since 03.02.2005, therefore his Claim Petition
cannot be dismissed as barred by limitation.
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5. On the other hand, Mr. Vikas Pandey, learned
Standing Counsel for the respondents, has supported the
impugned judgment.
6. Clause (b) of sub-section (1) of Section 5 of the
Uttar Pradesh Public Services (Tribunal) Act, 1976 (as
applicable in the State of Uttarakhand) (in short, "the Act,
1976") lays down its own period of limitation for the claim
petition brought under it, which reads as under :-
"(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.
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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.
7. Learned Tribunal observed that if the petitioner
wanted such orders, passed on his representations, to be
quashed, the Claim Petition ought to have been filed within
one year of rejection of such representation(s). The same
has not been done. Petitioner has also made a prayer for his
promotion w.e.f. 03.02.2005, which is also time barred,
inasmuch as, he should have filed the claim petition on or
before 03.02.2006. The same has not been done. Learned
Tribunal further observed that representation and rejection
of such representation vide order dated 24.10.2019 will not
extend the limitation, inasmuch as the representation which
was forwarded along with letter dated 26.09.2019 to
Commissioner, State Tax and which was rejected on
24.10.2019 by Commissioner, State Tax, was a non-
statutory representation, and non-statutory representation
will not extend the limitation, in view of the decision
rendered by the Hon'ble Supreme Court in State of
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Uttarakhand and Another vs. Shiv Charan Singh
Bhandari and Others, (2013) 12 SCC 179.
8. The law of limitation is based on the maxims-
interest reipublicae ut sit finis litium- means that it is in the
State's interest that there be an end to litigation, and,
vigilantibus non dormientibus jura subveniunt- which means
the law assists only those who are vigilant, and not those
who sleep over their rights.
9. Section 5 (1) (b) of the Act, 1976 places a
statutory obligation on the Tribunal to examine whether the
claim petition is filed within limitation or not. Tribunal is to
take notice of the said provision and give effect to it, and,
what should follow if the claim petition is filed beyond the
limitation, the claim petition should be dismissed.
10. In view of above, we, therefore, do not find any
merit in the submission of learned counsel for the petitioner
that the petitioner has continued cause of action for filing
the claim petition. Writ Petition is liable to be dismissed; the
same is dismissed. No order as to costs.
________________
VIPIN SANGHI, C.J.
___________________
ALOK KUMAR VERMA, J.
Dated: 28.03.2023
JKJ/NEHA
