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2020 DIGILAW 76 (HP)

Naresh Thakur v. State Of Himachal Pradesh

2020-01-06

TARLOK SINGH CHAUHAN

body2020
JUDGMENT Tarlok Singh Chauhan, J. - The present petition has been filed for the following reliefs: "(i) That the impugned rejection dated 3.12.2014 at Annexure A-14 and dated 20.9.2016 at Annexure A-25, may kindly be quashed and set-aside. (ii) That the respondents may kindly be directed to regularize the services of the applicants with effect from due date i.e. the date of completion of 10 years of their daily wage services i.e. 1996/1997 with all consequential benefits in the interest of justice." 2. The applicants/petitioners were initially appointed as Clerks on daily wages in the year 1986-87 without any sanctioned posts for limited period for various studies/research work in the Projects funded by the Government of India in the Himachal Pradesh Institute of Public Administration (HIPA). In the year 1992, all the petitioners (except petitioner No.4) applied for the posts of Investigators in the Projects and were taken as such. Whereas, petitioner No.4 remained as Clerk upto 30.09.1992. In the year 2003, four posts of Investigators were created by abolishing existing four posts i.e. Deputy Director (Research), Programmer, Research Assistant and Junior Scale Stenographer of the Institute. The petitioners were offered these appointments and they accepted the same unconditionally. 3. It was in the year 2010 when the petitioners woke up from deep slumber and filed CWP No. 4758 of 2010 seeking regularization of their services in accordance with the policy framed by the Government on 11.12.1997. 4. Even this writ petition was not decided on merits and rather the same was disposed of with a direction to respondent No.2 to consider and decide the petitioners' claim in terms of the policy. The said representation was rejected by the respondents on 03.12.2014. The petitioners thereafter filed O.A. No. 260/2015 which was decided by the learned Tribunal vide its order dated 30th June, 2016 with a direction to the respondents to re-consider the case of the petitioners for regularization on completion of 10 years service with all consequential benefits. 5. In compliance to the aforesaid direction the respondents again considered the case of the petitioners and rejected the same vide order dated 20.09.2016 that has been impugned herein. 6. The aforesaid narration of facts clearly goes to show that the petitioners unconditionally accepted their appointment as Investigators in the year 2003 and having accepted the same are estopped from filing the present petition. 7. 6. The aforesaid narration of facts clearly goes to show that the petitioners unconditionally accepted their appointment as Investigators in the year 2003 and having accepted the same are estopped from filing the present petition. 7. No doubt, a direction was issued by this Court as also by the learned Tribunal to consider the case of the petitioners, but the repeated rejections thereafter would also not furnish a cause of action to the petitioners to file present petition. 8. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in C. Jacob vs. Director of Geology and Mining and another, (2008) 10 SCC 115 which reads as under: "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. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the exemployee 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." 9. Further, the Hon'ble Supreme Court in Union of India and others vs. M.K. Sarkar, (2010) 2 SCC 59 reiterated the legal position as under: "The order of the Tribunal allowing the first application of the respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. Further, the Hon'ble Supreme Court in Union of India and others vs. M.K. Sarkar, (2010) 2 SCC 59 reiterated the legal position as under: "The order of the Tribunal allowing the first application of the respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. 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 timebarred 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. Moreover, a court to 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 a "dead" or "stale" issue. If 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 to tribunal deciding to direct "consideration" without itself examining 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." 10. Similar, reiteration of law can be found in a judgment rendered by the Division Bench of this Court in LPA No. 89 of 2012 titled Sainik Schools Society and another vs. R.C. Sharma, decided on 17.06.2014. 11. The ratio decidendi of all the aforesaid judgments is that the subsequent rejection of representation will not furnish a cause of action or revive a dead issue or time barred dispute. 12. In view of the aforesaid discussion, I find no merit in this petition and accordingly the same is dismissed. Pending application, if any, also stands disposed of.