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2010 DIGILAW 2403 (PAT)

Mahabir Paswan Prabhakar v. State of Bihar

2010-10-29

MIHIR KUMAR JHA

body2010
Order Having heard learned counsel for the petitioner and counsel for the State as with regard to the following prayer:- "1 (i) For issuance of a writ, order or direction directing and commanding the respondents to grant the promotion with retrospective effect on the post of Permanent Headmaster in the Middle School w.e.f. 1.4.1991 for monetary benefits only at this stage as has been granted on the post of Headmaster to the similarly situated another Assistant Teachers, juniors to the petitioner who are still in service on the post of Permanent Headmaster. (ii) For grant of Super Selection Grade provided in service for the category of SC/ST candidates. (iii) For a direction, directing the respondents to pay arrears of differences in salaries for the posts held and deemed to be held by the petitioner or has been entitled in accordance with law alongwith an interest, at the rate of 12% thereupon as admissible w.e.f. 1.4.1991 i.e. for trained Graduate Teacher, Super Selection Grade and treating as Permanent Headmaster 'of Middle School and accordingly Pension Fixation of the petitioner be corrected, made and paid to the petitioner." when this Court had put a question to the counsel for the petitioner as to whether there was any order of promotion issued in favour of the petitioner, he could point out only to a chart showing proposal for promotion and transfer. The said chart cannot be treated to be duly authenticated order so as to infer that the petitioner was already given promotion on the post of Headmaster. Once this aspect becomes clear that there is no order issued in favour of the petitioner for his being promoted on the post of Headmaster, this Court would find it difficult to direct the respondents to give benefit of the post of Headmaster on which the petitioner was never promoted by any specific order. 2. The petitioner had retired in the year 1996 and thereafter he has filed this writ application in the year 2004. Counsel for the petitioner submits that the petitioner belongs to the reserved category and therefore his entitlement by way of benefit of his promotion can be agitated by the petitioner at any point of time. 3. Unfortunately, that is not 'he law. Counsel for the petitioner submits that the petitioner belongs to the reserved category and therefore his entitlement by way of benefit of his promotion can be agitated by the petitioner at any point of time. 3. Unfortunately, that is not 'he law. A reserved category employee may have any other privilege of getting promotion out of turn but then for him also, law will remain the same that he too has to move a court of law with regard to cause of action, alike any other person, within a reasonable period of time. Admittedly, the cause of action of the year 1991 onwards could not have been made subject matter in a writ application filed by him on 13.2.2004. 4. That apart, the fact that the petitioner's promotion was never notified and merely because his name was only included in a list by way of proposal would not give any right to claim promotional benefit, specially when the petitioner has also not made out a case of any junior to him of being given such promotion on the post of Headmaster. 5. At this stage, counsel for the petitioner points out that at least a direction may be given for considering the representation of the petitioner which was filed by him after his retirement on 11.12.2001. Once this Court has found that the cause of action brought by the petitioner was wholly belated, no direction can be issued by this Court to revive a dead cause of action. Reference in this connection may be made to the following passages of the judgment of the Apex Court in the case of C. Jacob VS. Director of Geology and Mining & Anr. reported in 2008(10) SCC 115 where the representation syndrome was deprecated in the following t6: ms:-:- "The modus of "representation" 8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if any application is• made before tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if any application is• made before tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying to such representations relating old matters. Taking advantage of this position, the exemployee files an application/writ petition before the tribunal/High Court seeking a direction to the employer to consider and dispose of his, representation. The tribunals/High Courts routinely allow or dispose of such applications/ petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. 9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligations of parties. tittle do they realize the consequences of such a direction to "consider". If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and, for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. 10. 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 this manner, the bar of limitation or the laches gets obliterated or ignored. 10. 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. 11. 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 so may 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 a fresh cause of action. 12. When a Government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice. - 13. Where an employee unauthorisedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the Court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/removal, Court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/removal, Court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back wages. 14. We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and care in issuing directions for "consideration". If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing "consideration" of such claims." 6. With the aforementioned observations, this application is dismissed.