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2023 DIGILAW 241 (UTT)

Rajendra Kumar v. State of Uttarakhand

2023-03-28

ALOK KUMAR VERMA, VIPIN SANGHI

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JUDGMENT : 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 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 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. 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. 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. 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. 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 nonstatutory 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 Uttarakhand and Another vs. Shiv Charan Singh Bhandari and Others, (2013) 12 SCC 179 . 8. The law of limitation is based on the maximsinterest 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.