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2020 DIGILAW 350 (JK)

Mohammad Jamal Shergujri v. State of J&K

2020-07-29

RAJESH BINDAL, RAJNESH OSWAL

body2020
JUDGMENT Rajnesh Oswal, J.—By virtue of the judgment dated 26.04.2018 the writ petition filed by the Appellant challenging the order No. 319 of 2018 dated 09.01.2018 and the grant of Grade of Meter Reader (Executive cadre), with effect from September 1983 till the date of his superannuation i.e. 31.08.2006, was dismissed by learned Single Judge and later on vide order dated 09.08.2018, the Review Petition against the said judgment too was dismissed by Learned Single Judge. Appellant has thrown challenge by way of the present intra-court appeal to both the judgment and order as mentioned above. 2. The brief facts are that the appellant had filed the writ petition on the ground that the appellant was brought on work charge cadre as a Revenue Helper on 01.04.1970 and after having availed the medical leave, rejoined in terms of order dated 23.07.1976. The appellant being a matriculate was brought on the executive cadre of the Department as Meter Reader but he was entitled to be brought on ministerial cadre. The respondents in terms of order No. 163/CEE of 1983 dated 17.06.1983 ordered that the post of Meter Reader would be on the executive cadre instead of ministerial cadre. The appellant was promoted as Meter Reader with effect from 15.03.2005 but he was entitled to be promoted with effect from 1983. He superannuated from the service on 31.08.2006. There was some dispute with regard to the processing of pension case of the appellant that necessitated him to file writ petition bearing SWP No. 988/2007 and the same was disposed of vide order dated 23.05.2008. The respondents after the passing of the order released his post-retiral benefits, without making any deductions there from. The appellant claims to have issued a notice dated 21.10.2008 for redressal of his grievances for grant of arrears of salary in the grade of Meter Reader with effect from the year 1983. The appellant in the year 2013 filed fresh petition bearing SWP No. 2386/2013. The learned Single Judge vide order dated 22.08.2017 disposed of the same with a direction to the respondents to consider afresh the grievances of the appellant in accordance with law, which he would project by filing a fresh representation. The respondents considered the case of the appellant and rejected the same by virtue of order dated 09.01.2018, being time barred. 3. The respondents considered the case of the appellant and rejected the same by virtue of order dated 09.01.2018, being time barred. 3. The learned Single Judge vide order dated 26.04.2018 dismissed the writ petition filed by the appellant as being hit by the doctrine of delay and laches. The appellant feeling aggrieved of the same filed appeal. This Court vide order dated 05.06.2018 disposed of the said appeal with liberty to the appellant to file review petition, if so advised. The appellant preferred the review petition before the learned Single Judge, which was dismissed by virtue of order dated 09.08.2018. 4. The respondents filed their objections before this Court and supported the order passed by them, as was impugned in the writ petition. Finally they prayed for dismissal of the present appeal. 5. The appellant has preferred this appeal primarily on the grounds that the learned Single Judge has not taken into consideration the communication dated 04.06.2007 and also the legal notice dated 21.10.2008 and other communications in this regard and further that the appellant has been continuously representing to the respondents from the year 2007 till 2018 for redressal of his grievances. It is further the case of the appellant that the learned Single Judge has not considered the service records prepared by the respondents. Precisely, it is the submission of the appellant that his writ petition was not hit by the principles of delay and laches. The appellant has also assailed the order rejecting his application for review on the ground that it is not in accordance with law and also the same has been passed on hyper-technical grounds. Whereas on the other side the learned counsel for the respondents supported the orders passed by the learned Single Judge. 6. We have heard learned counsel for the parties and perused the record meticulously. 7. The learned Single Judge has dismissed the writ petition of the appellant on the ground of delay and laches, as the learned Single Judge has observed that the appellant remained satisfied with his appointment and subsequent promotions made from time to time till he retired in the year 2006. This is an admitted fact that the appellant superannuated on 31-8-2006 and it was only in the year 2013 that the appellant filed the writ petition bearing SWP No. 2386/2013 for claiming the grade of Meter Reader with effect from 1983. This is an admitted fact that the appellant superannuated on 31-8-2006 and it was only in the year 2013 that the appellant filed the writ petition bearing SWP No. 2386/2013 for claiming the grade of Meter Reader with effect from 1983. The said petition too was filed after inordinate delay but nonetheless the same was disposed of by the Learned Single Judge vide order dated 22.08.2017. The contention of the Appellant that he has been representing to the Respondents continuously for redressal of his grievances by way of representations, hence, is not guilty of delay and laches, is not doubt attractive but lacks merit as the original cause of action arose initially when the grade of Meter Reader was not granted to him and even after making representation, he never took to legal recourse till 2013. It is settled law that once the cause of action is crystallized on a particular day then the repeated representation would not extend the period of limitation. No doubt there is no period of limitation for filing writ petition under Article 226 of Constitution of India, nonetheless the same has to be filed within reasonable time. Similarly, the contention of the appellant that the learned Single Judge did not consider the fact that the case was earlier considered by virtue of writ petition bearing SWP No. 2386/2013, disposed of vide order dated 22.08.2017 and by no stretch of imagination the writ petition of the appellant was hit by the principles of delay and laches, is without merit. The said order is also of no help to the appellant, as the respondents were simply directed to consider the claim afresh on the basis of representation filed by the appellant and that did not furnish any new cause of action to the appellant. Mere direction in the earlier writ petition would not revive the stale or dead issue and so is the case, when the repeated representations are filed. Reliance is placed upon “State of Uttaranchal Vs Sri Shiv Charan Singh Bhandari and others” reported in 2013(6) SLR 629 in which Hon’ble Supreme Court while considering the issue regarding the delay and laches and referring to earlier judgments on the issue, held that the repeated representations will not keep the issues alive. Reliance is placed upon “State of Uttaranchal Vs Sri Shiv Charan Singh Bhandari and others” reported in 2013(6) SLR 629 in which Hon’ble Supreme Court while considering the issue regarding the delay and laches and referring to earlier judgments on the issue, held that the repeated representations will not keep the issues alive. A stale or a dead issue/dispute cannot be got revived even if such a representation has either been decided by the authority or got decided by getting a direction from the court as the issue regarding delay and laches is to be decided with reference to original cause of action and not with reference to any such order passed. Even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. Anyone who sleeps over his rights is bound to suffer. An employee, who sleeps like Rip Van Winkle and got up from slumber at his own leisure, deserves to be denied the relief on account of delay and laches. Relevant paragraphs from the aforesaid judgment are extracted below:- “13. We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned counsel, for the respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115 , 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. 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 representation 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, (2010)2 SCC 59 , 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, incompliance 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, (2006) 4 SCC 322, 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, (1977) 3 SCC 396 , it has been opined that making of repeated representations is not a satisfactory explanation of delay. 16. In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396 , 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, (1976) 3 SCC 579 . 17. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass and others, (2011) 4 SCC 374 , a three-Judge Bench of this Court reiterated the principle stated in Jagdish Lal v. State of Haryana, (1977) 6 SCC 538 and proceeded to observe that as the respondents therein preferred to sleepover 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. Seshachalm, (2007) 10 SCC 137 , 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.” 19. There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another, (2009) 15 SCC 321 . 20. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278 , the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. 20. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278 , the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction. 21. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P. S. Sadasivasway v. State of Tamil Nadu, (1975) 1 SCC 152 , wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for the relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters. 22. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court. True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time.” [Emphasis supplied] 8. The issue regarding decision of a claim on a direction by the Court on the representation filed by a writ petitioner was also considered in Union of India and others v. M. K. Sarkar, reported in (2010) 2 SCC 59 , wherein it was held that the issue of limitation or delay and laches, is to be considered with reference to original cause of action and not with reference to an order passed in compliance to Court’s direction. The Court’s direction to consider representation or a decision given in compliance thereof, will not extend the limitation or erase the delay and laches. 9. The Court’s direction to consider representation or a decision given in compliance thereof, will not extend the limitation or erase the delay and laches. 9. In Bal Krishan v. State of Punjab & ors, 2013(2) RSJ 18 (P&H), wherein the petitioner, after retiring about 34 years of service, sought re-fixation of his pay from the date he joined service by filing a petition 3 years after his retirement. The Court dismissed the writ petition on account of delay and laches only. 10. Admittedly, after the appellant attained superannuation in 2006, he filed the writ petition for settlement of his pension case in the year 2007 and at that time also, the cause of action to file the writ petition with regard to release of grade of Meter Reader was available to him, but still the appellant did not choose to claim the same in the said writ petition and as such, the claim of the appellant for grant of grade of Meter Reader with effect from 1983 is also hit by principles of Order II Rule 2 of the C.P.C. Therefore, the writ petition filed by the appellant deserved to be rejected on this ground as well. 11. So far as the order dated 09.08.2018 is concerned, the learned Single Judge has passed the same within the parameters of Order 47 Rule 1 of C.P.C. and has rightly held that the review is by no means an appeal in disguise. The learned Single Judge had passed the judgment impugned, which was the subject matter of the review application, after properly considering and appreciating the contentions raised by the appellant and despite pleadings of representations made by the appellant, had dismissed the writ petition on the ground of delay and laches. The appellant could not have raised the same plea again through the medium of review petition. 12. For the reasons mentioned above, we do not find any merit in the present appeal. The same is, accordingly, dismissed along with connection application.