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2012 DIGILAW 2051 (ALL)

Bikau Yadav v. State of U. P. and Others

2012-09-06

KRISHNA MURARI

body2012
Hon'ble Krishna Murari, J. Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents. The petitioner claims that he was appointed as 'Mali'in Veer Bahadur Singh Sports College, Gorakhpur with effect 12.10.1989. Although the copy of the appointment letter has not been filed but it appears from the pleadings that his appointment was purely temporary in nature. He further alleges that all the employees of the college were told by the Principal orally that the college shall be closed for ever with effect from 15.5.1992 and thus they need not come to perform their duties. Certain employees along with the petitioner filed writ petition no. 20301 of 1992 ( Km. Anshu Kapoor & others vs. State of U.P. & others) in which a counter affidavit was filed on behalf of respondent no. 2. In paragraph 13 of the counter affidavit it was stated as under : "13. That the contents of paragraph no. 11 of the writ petition are emphatically denied and in reply thereto it is stated that the petitioners have miserably failed to make out any case under Article 226 of the Constitution of India before this Hon'ble Court. There is absolutely no termination order against any of the petitioner. The employment of the petitioner no. 1 to 4 is governed by their respective contracts. The respondent no. 5 to 18 being casual daily workers have not at all been terminated or stopped from performing their work in the college. They are still at liberty to come to the college and perform their work and duties as usual like the remaining workers who have not joined hands with the petitioner. There is absolutely no cause of action for filing the above noted writ petition. The above noted writ petition is based upon baseless, frivolous and vexatious grounds. As such, it is liable to be dismissed straight way with costs to the answering respondents. The petitioners have hopelessly failed to satisfy the requisite ingredients for issuance of writ of MANDAMUS or not at all entitled for any relief from this Hon'ble Court. The above noted writ petition is based upon baseless, frivolous and vexatious grounds. As such, it is liable to be dismissed straight way with costs to the answering respondents. The petitioners have hopelessly failed to satisfy the requisite ingredients for issuance of writ of MANDAMUS or not at all entitled for any relief from this Hon'ble Court. Since the performance of work and duty of the petitioners have not all been discontinued or terminated, there is no justification for praying for continuance of their service by order of this Hon'ble Court, so far as the grant of respective pay scales are concerned, the petitioners have never represented or approached the competent authorities in that behalf. It is still open for the petitioners to do the same, which may be considered in accordance with law by them. But in the facts and circumstances of the present case the Writ of Mandamus may not be issued by this Hon'ble Court." The writ petition was dismissed on 10.1.1995. An application dated 9.2.1995 was filed for recall of the order which was also dismissed on 10.3.1995 by passing the following order : "Petitioner has moved an application dated 9.2.95 for recalling order of this Court dated 10.1.95. Heard Sri Dinesh Dwivedi, on the question of recalling order dated 10.1.1995. Vide order dated 10.1.95 the petition was not only dismissed in default, but also considering the merits of the case the said order was passed. Having heard Sri Dwivedi, in the opinion of this court, no case is made out to recall the order dated 10.1.95. However, the facts as stated by Sri Dwivedi, the petitioner, if so advised, may approach to the authority concerned in view of the facts disclosed in the counter affidavit. With the above observation, the application dated 9.2.95 is rejected." From the aforesaid, it is clear that earlier the writ petition was dismissed on merits and while rejecting the recall application, liberty was given to the petitioners to approach the concerned authority. It has further been pleaded in paragraph 12 of the writ petition that after disposal of writ petition no. 20301 of 1992, the petitioner approached the respondents several times for continuance of his job and gave several representations but no decision was taken and he was not allowed to work. The petitioner again approached this Court by filing writ petition no. 20301 of 1992, the petitioner approached the respondents several times for continuance of his job and gave several representations but no decision was taken and he was not allowed to work. The petitioner again approached this Court by filing writ petition no. 73656 of 2011 which was disposed of vide order dated 19.12.2011 with a direction to the competent authority to decide the representation of the petitioner expeditiously preferably within a period of three months from the date of filing a certified copy of the order. In compliance of the said order, the Principal of the College vide order dated 27.3.2012 has rejected the representation of the petitioner on the finding that the services of the petitioner was not terminated but he himself did not report for duty and never contacted the college for 19 years and as such, he was not entitled for regularization as claimed. The petitioner has approached this Court by filing instant writ petition challenging the said order. The issue which arises for consideration is whether the claim of the petitioner for regularizing his services is liable to be considered after two decades and whether the order dated 27.3.2012 passed by the respondent no. 2 on the representation of the petitioner in pursuance of the direction issued by this Court will extend the limitation or give a fresh cause of action to the petitioner. This issue is no longer res-integra. The Hon'ble Apex Court had occasioned to examine such situation in the case of Union of India vs. M.K. Sarkar reported in 2010(2) SCC 59 and it was held as under : "The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. x x x x x 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 can not 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 of which an order is passed in compliance with a court's direction. 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 of 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. A Court or Tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to 'dead' or 'stale' issue. It it is with reference to a 'dead' or 'stale' issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect." Again in the case of Union of India vs. A. Durairaj (Dead) by Lrs. reported in JT 2011(3) SC 254, the same view has been reiterated. In the said case, the incumbent was denied promotion in the year 1976 on the ground of colour blindness. However, subsequently, he was again sent for medical examination for being empanelled as a eligible candidate for Group-B promotion in which he was found medically fit and was promoted to the post of Assistant Works Manager on ad hoc basis on 24.9.1998. Thereafter, representation was made contending that ad hoc promotion in 1976 was unjustly refused on the ground of colour blindness and he should be given promotion with retrospective effect from 1976. After making representation, he approached the Central Administrative Tribunal in 1999. The said application was disposed of by the Tribunal on 22.12.1999 with a direction to consider his pending representations seeking promotion. After making representation, he approached the Central Administrative Tribunal in 1999. The said application was disposed of by the Tribunal on 22.12.1999 with a direction to consider his pending representations seeking promotion. In compliance of the said directions, the General Manager, Southern Railway considered his representation and sent the communication dated 8.2.2000 informing that because of using "x-chrom" contact lens used for colour blindness you may have been declared fit in the medical examination held in 1998 and since ordinarily wearing of colour vision soft contract lens cannot be detected by naked eye examination, as such, it was proposed to get a special medical examination by a committee of experts. The incumbent again approached the Tribunal by filing another O.A. for quashing the aforesaid communication and seeking a direction to promote him with retrospective effect. The Tribunal dismissed the application mainly on the ground of laches. The order of the Tribunal was challenged before the Madras High Court. During the pendency of the writ petition, the incumbent retired from the service. The High Court disposed of the writ petition by directing the Railways to pay a sum of Rs.2 Lacs as compensation on account of loss of opportunity as he was illegally denied advancement in career in 1976 and also for mental agony. The Union of India filed an appeal before the Hon'ble Apex Court. While allowing the appeal, the Hon'ble Apex Court in paragraph 13 & 14 has observed as under : "13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become state and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches. 14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action)." The prayer in this petition for regularizing the services of the petitioner and to pay salary accordingly has been made after two decades of having left the employment suo moto. In view of the law laid down by the Hon'ble Apex Court, the order dated 27.3.2012 made on the representation of the petitioner in pursuance of a simpliciter direction issued by this Court to decide the representation will not cure the laches. The original cause of action accrued to the petitioner about 20 years back and the order dated 27.3.2012 passed in compliance of the direction issued by this Court cannot be considered furnishing of fresh cause of action. In view of facts and discussions, writ petition stands dismissed on the ground of laches. ……………………………………