Research › Search › Judgment

Himachal Pradesh High Court · body

2024 DIGILAW 250 (HP)

Jeeva Nand v. State of H. P.

2024-04-09

SATYEN VAIDYA

body2024
JUDGMENT : Satyen Vaidya, J. By way of instant petition, petitioners have prayed for following reliefs:- (i) That impugned action of the respondents which has denied the benefit of Rule 7(n) of H.P. State Cooperative Bank Employees (Terms of Employment and Working Conditions), Rules, 1979, to the petitioners, the copy of one such impugned letter dated 02.04.2019 (Annexure P-9), may kindly be quashed and set aside and the respondents may be directed to implement the above provisions to them. (ii) That the Respondents No. 2 & 3 may be directed to count the past service of the petitioners for the purpose of fixation of pay in new scale, towards pension/retirement benefit and the leave at credit may ordered to be carried forward as per the provision of Bank Rule 7(n) of H.P. State Cooperative Bank Employees (Terms of Employment and Working Conditions), Rules, 1979. (iii) That the seniority of the petitioners to the post of Assistant Manager may kindly be ordered to be counted from the initial day of their joining for all intend and purposes and the contrary action by counting the seniority from the date of regularization may kindly be set aside. (iv) That the respondents may be directed to consider the case of the petitioners for the implementation of Bank Rule 7(n) of H.P. State Cooperative Bank Employees (Terms of Employment and Working Conditions), Rules, 1979, afresh as they have been condemned unheard. 2. Petitioners were working as Junior Clerks with respondent No.3 (hereinafter referred to as the ‘bank’). The bank issued advertisement dated 27.02.2009, for filling-up posts in different categories on contract basis through direct recruitment in the bank, which included the post of Officer Grade-III (Assistant Manager). The employees already serving the bank, were also free to apply through proper channel for the posts advertised as above. 3. Petitioners, having requisite qualification, also applied for the posts of Assistant Managers through proper channel. They were selected. Since, the posts were advertised to be filled on contract basis, offers were also made to the petitioners to be appointed as Assistant Managers on contract basis. 4. The offer of appointment was made to the petitioners with a condition that they would have to undertake to forgo their right to the benefits under Clause 7(n) of the H.P. State Co-operative Bank Employees (Terms of Employment and Working Conditions) Rules, 1979, (for short ‘The Rules’). 4. The offer of appointment was made to the petitioners with a condition that they would have to undertake to forgo their right to the benefits under Clause 7(n) of the H.P. State Co-operative Bank Employees (Terms of Employment and Working Conditions) Rules, 1979, (for short ‘The Rules’). Petitioners accepted the appointments on aforesaid condition. They submitted their respective undertakings and thereafter joined the bank as Assistant Managers on contract basis. 5. Clause 7(n) of the Rules provide for certain benefits of the past service to the employees of bank in case of their appointment to the higher post. However, in the case of the petitioners, their appointments as Assistant Managers were made by excluding the benefit of Clause 7(n) of the Rules. 6. Petitioners made repeated representations to the bank w.e.f. 08.08.2013 to 31.07.2018 without any success. The bank finally rejected the claim of the petitioners, vide communication dated 2.04.2019, Annexure P-9. Hence, this petition. 7. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 8. It is contended on behalf of the petitioners that the exclusion of the benefits as per Clause 7(n) of the Rules in their case was illegal for the reasons firstly, that there was no mention of such exclusion clause in the advertisement dated 27.02.2009 and the petitioners were taken by surprise at the time of their appointments and since they had no bargaining power as against the bank, they had to submit the undertaking as required by the bank, secondly, the bank was estopped from denying the benefits to Clause 7(n) of the Rules to the petitioners as the rules had statutory recognition having been framed on the strength of the provisions of H.P. State Cooperative Societies Act, 1969 and lastly, it has been contended that the principle of waiver was not applicable in the case of the petitioners as the right had been conferred upon them under a statute. 9. Per-contra, learned counsel for the bank has submitted that this Court does not have the jurisdiction to try and decide the issue involved in the instant petition. It is submitted that the bank is a Co-operative Bank registered under Cooperative Societies Act. It is not owned or controlled by the State. The bank is neither State nor any other authority under Article 12 of the Constitution. It is submitted that the bank is a Co-operative Bank registered under Cooperative Societies Act. It is not owned or controlled by the State. The bank is neither State nor any other authority under Article 12 of the Constitution. Objection has also been raised to the claim of the petitioners on the ground of delay and laches. It has been submitted that the petitioners were appointed in June, 2012 and the instant petition was filed in 2019. The claim as raised by the petitioners necessarily being in the realm of service matter was required to be agitated before the legal forum within the time stipulated in law or at least within reasonable period. Another objection of the bank is that one of the petitioners was categorically communicated by the bank in the year 2012 itself, vide Annexure P-6, that the benefits of Clause 7(n) of the Rules could not be made applicable in his case and in absence of any challenge to Annexure P-6, petitioners can not succeed. As per bank, petitioners also cannot succeed for want of any challenge to the exclusion clause of the appointment offer. In addition, learned counsel for the bank has submitted that the service rules of the bank provided for contract appointment as one of the modes and such appointment in the present case were made under a scheme approved by the Registrar, H.P. State Cooperative Societies in relaxation of service rules. The exclusion clause in the appointment letters of the petitioners has also been sought to be justified on this ground. 10. In rebuttal, learned counsel for the petitioners has submitted that the doctrine of the merger will apply in the fact of the case, as the final rejection to the claim of the petitioners had come from the bank, vide Annexure P-9, as such there was no delay and laches on the part of the petitioners in approaching this Court. The cause of action is also stated to be recurring on the ground that if petitioners succeed, it will affect their pension prospects favorably. 11. The cause of action is also stated to be recurring on the ground that if petitioners succeed, it will affect their pension prospects favorably. 11. Clause 7(n) of the H.P. State Co-operative Bank Employees (Terms of Employment and Working Conditions) Rules, 1979, reads as under:- “(n) In respect of a Bank employee who is working as such in a substantive capacity and who applies through proper channel and is selected against any higher post in the bank under direct recruitment quota, the following benefits will be available to him:- (i) His resignation will be treated as a technical formality. (ii) The benefit of past service, if otherwise admissible under rules will be allowed for the purpose of fixation of pay in the new scale. (?) Leave at credit will be carried forward; and (iv) The past service will be counted for pension/retirement benefits to the same extent it would, but for resignation.” 12. There is no dispute on facts that the petitioners were earlier serving the bank on lower posts as regular employees. The bank invited applications for appointment to the post of Assistant Managers on contract basis through direct recruitment. The petitioners participated in the selection process in order to get themselves appointment as Assistant Managers. 13. Petitioners got selected and thereafter offer of appointments were made to them by the bank through appointment letters. The copies of appointment letters in respect of the petitioners Sunil Bhardwaj and Pawan Kumar have been placed on record. The exclusion clause by way of which petitioners have been denied the benefit of Clause 7(n) of the H.P. State Co-operative Bank Employees (Terms of Employment and Working Conditions) Rules, 1979, reads as under:- “c) You will furnish an affidavit that you will not be entitled to claim benefits enshrined under clause 7(n) of the rules relating to terms of employment and working conditions of the Employees of the HP. State Co-operative bank. (For in service candidates i.e employees of HPSCB who have been selected).” 14. It is not the case of the petitioners that before receipt of appointment letters, they had already resigned from there earlier posts and their resignations had been accepted. In this backdrop, petitioners clearly had an option to accept or refuse the appointment subject to the condition of exclusion clause, as noticed above. Petitioners did not avail such option and instead accepted the appointment as offered to them. In this backdrop, petitioners clearly had an option to accept or refuse the appointment subject to the condition of exclusion clause, as noticed above. Petitioners did not avail such option and instead accepted the appointment as offered to them. Not only this, petitioners also submitted their respective undertakings to implement the exclusion clause. It was thereafter that petitioners started agitating the denial of the benefit of Clause 7(n) of the Rules to them by filing repeated representations. As per their own case, petitioners submitted representations dated 08.08.2013, 26.11.2014, 17.03.2017, 18.03.2017, 20.03.2017, undated, 13.10.2017, 18.10.2017, 26.10.2017 and 31.07.2018. Evidently, through all these representations, petitioners claimed the restoration of benefit of Clause 7(n) of the Rules in their case. 15. The question, thus, arises whether the petitioners can now turn around and say that they were not bound by the undertakings given by them in pursuance to exclusion clause as a condition precedent in their appointment letters for the post of Assistant Managers? 16. In my considered view, the answer has to be in negative. The reason is obvious that the petitioners having consciously accepted the terms and conditions of the appointment cannot be subsequently allowed to seek exemption therefrom. Petitioners had failed to avail opportunity to object to the exclusion clause being included as a condition for their appointment. 17. Viewed from another angle, the petitioners also had the opportunity to assail the action of the respondent-bank by resorting to legal remedies before accepting the conditions as laid by the bank in their appointment letters. Having failed to do so, petitioners definitely waived a right, which was available to them by virtue of Clause 7(n) of the Rules. 18. The petitioners next urged that they did not possess the bargaining power to bargain with the employer. In order to test such contention, it can be taken note of that petitioners were not out of employment and therefore, in desperation to secure employment. They also were not under any compulsion to agree to the conditions of appointment. Even otherwise, as noticed above, petitioners could have easily taken recourse to the legal remedies before accepting the conditions of the appointment letter. The legality of the action of the bank in denying the benefit of clause 7(n) of the Rules could easily have been tested at that stage. 19. Even otherwise, as noticed above, petitioners could have easily taken recourse to the legal remedies before accepting the conditions of the appointment letter. The legality of the action of the bank in denying the benefit of clause 7(n) of the Rules could easily have been tested at that stage. 19. Further, the petitioners in their entire petition have not laid any factual foundation for the ground of challenge now sought to be raised. It has nowhere been complained that the petitioners were under any coercion, threat or misrepresentation before accepting the appointments as Assistant Managers or the undertakings were procured from them by employment of fraud in any form. 20. Petitioners have placed reliance on a judgment dated 18.12.2014, passed by this Court in LPA No. 132 of 2014, titled as Dr. Lokpal Vs. State of Himachal Pradesh and Ors., in order to support their contention, firstly, with respect to lack of bargaining power with them and secondly, that the principle of waiver could not be applied against them. In Dr. Lokpal’s case, the Division Bench of this Court after noticing the judgments passed by Hon’ble Supreme Court in Central InLand Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly and Another, (1986) 3 SCC 156 , Chairman and MD NTPC Ltd Vs. Rashmi Construction Builders and Contractors, (2004) 2 SCC 663 and Bhupender Nath Hazarika Another Vs. State of Assam and Others, (2013) 2 SCC 516 , observed that the Court has the jurisdiction and power to strike or set-aside the unfavourable term of employment which purports to give effect to unreasonable bargain violating Article 14 of the Constitution. It was so held by observing that the respondents in that case on the strength of bargaining power had taken advantage of their position and imposed wholly unequivocal and unreasonable condition of employment. 21. Petitioners, in my considered view, cannot take benefit of the judgement passed in Dr. Lokpal’s case for the reasons that observations made by Hon’ble Division Bench were in peculiar facts of that case, where the State had invited applications for filling-up one post of Assistant Professor in the subject of Chemistry on contract basis on a consolidated salary of Rs. 43,000./- per month. Petitioner in the said case had applied and was selected. After about four days of his joining, he received appointment letter with the terms and conditions contrary to the advertisement notice. 43,000./- per month. Petitioner in the said case had applied and was selected. After about four days of his joining, he received appointment letter with the terms and conditions contrary to the advertisement notice. Instead of offered consolidated salary of Rs. 43,000/-per month, the appointee in the said case was offered to be paid maximum salary of Rs. 21,000/-per month. 22. In the instant case, the fact situation is different, the advertisement clearly had invited applications for appointments to the posts of Assistant Managers on contract basis. There was no promise that the service rules applicable to the regular employees of the bank would also ifso facto apply to the contract employees also. Another distinction is that in Dr. Lokpal’s case the person had already joined on the basis of promise made in the advertisement and he was served with the appointment letter subsequently, whereas, in the instant case, as discussed above, the petitioners had sufficient opportunity either to opt out from accepting the appointments or to assail the same by availing legal remedies. In such scenario, the petitioners cannot complain of being victims of unconscionable or inequitable bargain. 23. As regards, the contention with respect to the non-applicability of principle of waiver, it can be seen that in Dr. Lokpal’s case, reliance was placed on Basheshur Nath Vs. Commissioner of Income Tax, AIR 1959 SC 149 . The petitioners again cannot be benefited by the proposition laid in Basheshur Nath as in the said case the waiver was sought in respect of the fundamental right, whereas in the instant case, it can at the most be a waiver of legal right. Petitioners have not been able to demonstrate as to how the waiver cannot be applied in respect of the legal right. 24. Learned counsel for the petitioners has further placed reliance on the judgments passed by Division Bench of this Court on 28.09.2023 in CWPOA No. 1745 of 2020, titled as Chaman Lal and Ors. Vs. State of Himachal Pradesh and Ors., to canvass that the contract services under the State Government have been held to be counted for the purposes of seniority and increments etc. Similarly, reliance has been placed on the judgment passed by Hon’ble Supreme Court in SLP (Civil) No. 10399 of 2020, titled as State of Himachal Pradesh and Anr. Vs. Vs. State of Himachal Pradesh and Ors., to canvass that the contract services under the State Government have been held to be counted for the purposes of seniority and increments etc. Similarly, reliance has been placed on the judgment passed by Hon’ble Supreme Court in SLP (Civil) No. 10399 of 2020, titled as State of Himachal Pradesh and Anr. Vs. Sheela Devi, whereby the view taken by this Court with respect to the counting of contract service towards the qualifying service for pension has been upheld and affirmed. Having given my thoughtful consideration to the contention so raised on behalf of the petitioners, I do not find it to favour the petitioners as they are confronted with all together a different situation. Petitioners have waived or forfeited a right, which was allegedly available to them by their own conscious conduct. That being so, petitioners cannot take the benefit of judgment passed in Chaman Lal’s and Sheela Devi’s cases (supra) as in all these cases there was no question of any disability being suffered by the petitioners therein by waiver or forfeiture of any right otherwise available to them. 25. It is also evident from the record that vide Annexure P-6, the bank had clearly depicted its intention not to grant the petitioners any benefit of Clause 7(n) of the Rules. It is also not in dispute that thereafter the petitioners kept on submitting repeated representations. It is not the case of the petitioners that their claim had been acknowledged by the bank, at any stage. In such circumstances, there is no difficulty in holding that the petitioners had not availed the legal remedy within reasonable time and for such reason also the petitioners are not entitled to relief being barred by delay and laches. A summary of legal position in this behalf was noticed by this Court while deciding CWP No. 166 of 2023, titled as Manish Kumar and Another Vs. State of Himachal Pradesh, (2023) SCC Online HP 1204, and its reproduction here will not be out of context:- “18. In State of Uttaranchal and another vs. Shiv Charan Singh Bhandari and others (2013) 12 SCC 179 , it has been held as under: “17. In Jacob Vs. State of Himachal Pradesh, (2023) SCC Online HP 1204, and its reproduction here will not be out of context:- “18. In State of Uttaranchal and another vs. Shiv Charan Singh Bhandari and others (2013) 12 SCC 179 , it has been held as under: “17. In Jacob Vs. Director of Geology and Mining (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: (SCC p.123, para 10) “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.” 18. 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 (SCC p.66, para 15) “15. 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 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. 28. 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. 28. 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.” 19. In Union of India and others vs. C. Girija and others (2019) 15 SCC 633 , it has been held as under: “16. This Court had occasion to consider the question of cause of action in reference to grievances pertaining to service matters. This Court in C. Jacob Vs. Director of Geology and Mining and Another, (2008) 10 SCC 115 had occasion to consider the case where an employee was terminated and after decades, he filed a representation, which was decided. After decision of the representation, he filed an O.A. in the Tribunal, which was entertained and order was passed. In the above context, in paragraph No.9, following has been held: (SCC pp. 122-23) “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 realise 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.” 17. This Court again in Union of India and Others Vs. 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.” 17. This Court again in Union of India and Others Vs. M.K. Sarkar, (2010) 2 SCC 59 on belated representation laid down following, which is extracted below: (SCC p.66, para 15) “15. 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 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.” 18. Again, this Court in State of Uttaranchal and Another Vs. Shiv Charan Singh Bhandari and Others, (2013) 12 SCC 179 had occasion to consider question of delay in challenging the promotion. The Court further held that representations relating to a stale claim or dead grievance does not give rise to a fresh cause of action. In paras 19 and 23, following was laid down: (SCC pp. 184-85) “19. 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. 23. In State of T.N. v. Seshachalam, (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: (SCC p. 145, para 16) “16. … filing of representations alone would not save the period of limitation. 23. In State of T.N. v. Seshachalam, (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: (SCC p. 145, para 16) “16. … 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 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. This Court referring to an earlier judgment in P.S. Sadasivaswamy Vs. State of Tamil Nadu, (1975) 1 SCC 152 noticed 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. In Paragraph No. 26 and 28, following was laid down: (Shiv Charan Singh Bhandari case, SCC pp. 185-86) “26. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 , wherein it has been laid down that: (SCC p. 154, para 2) “2. … 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 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.” * * * 28. 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.” 20. Recently, in State of Uttar Pradesh vs. Rajmati Singh (2022) SCC Online 1785, it has been held as under: “18. In “Union of India v. Tarsem Singh” (2008) 8 SCC 652 , this Court summarized the settled principles in the following manner:— “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” 19. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” 19. Close to the facts of this case, in “C. Jacob v. Director of Geology and Mining” (2008) 10 SCC 115 , this Court, having found that the employee suddenly brought up a challenge to the order of termination of his services after 20 years and claimed all consequential benefits, held that the relief sought for was inadmissible. The legal position in this regard was laid out in the following terms: “10. Every representation of the Government for relief, may not be applied 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 decision 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 abandons service to take 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. 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. Misplaced sympathy in such matters will encourage discipline, 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.” 21. The aforesaid enunciation is clear and categoric. The belated representation on behalf of petitioner No.1, that too, after about 12 years will not create a fresh cause of action in favour of the petitioners.” 26. The bank has also contended that in absence of challenge to Annexure P-6 and the specific offending clause of the appointment letter, the petitioners cannot be granted the relief, as prayed for. The contention so raised cannot be discarded for the simple reason that in case, the offending clause in the appointment letters of the petitioners coupled with the rejection of the claim of one of the petitioners, vide Annexure P-6, are allowed to remain intact, petitioners cannot succeed in their endeavour to get the position reversed. 27. As regards the objection as to maintainability of this petition under Article 226 of the Constitution against a Co-operative society, the question as raised on behalf of the bank already stands decided against the bank by this Court in CWP No. 4031 of 2021 titled Suresh Kaushal vs. State of H.P. & others vide judgment dated 28.9.2023. 27. As regards the objection as to maintainability of this petition under Article 226 of the Constitution against a Co-operative society, the question as raised on behalf of the bank already stands decided against the bank by this Court in CWP No. 4031 of 2021 titled Suresh Kaushal vs. State of H.P. & others vide judgment dated 28.9.2023. In that case also the bank had raised the similar plea on the premise of judgment passed in case of C. K. Malhotra vs. Himachal Pradesh State Co-operative Bank & others , reported in 1993 (3) Shimla Law Cases 243. According to the learned counsel for the bank, the verdict in C. K. Malhotra (supra) stood affirmed by the Full Bench of this Court in CWP No. 3634 of 2012 titled as Vikram Chauhan vs. Managing Director & others along with connected matters. 28. This Court however rejected the contention raised on behalf of the bank by holding as under:- “11. Taking the issue of maintainability first, it will be relevant to notice the mandate as rendered by the Hon’ble Division Bench of this Court in C. K. Malhotra (supra). The relevant extract of the same is reproduced as under:- “98. Consequently, we have no hesitation in holding that the three Societies, namely, The Himachal Pradesh State Co-operative Bank Ltd.; The Kangra Central Co-operative Bank Ltd, and the Himachal Pradesh State Co-operative Marketing and Development Federation Ltd, are not other authorities' and, as such, cannot be characterised as 'State' when the meaning of Art. 12 of the Constitution and the same are also not authority within the meaning and for the purpose of Article 226 of the Constitution. Order passed by the Societies under their respective service regulations against its employees, as such, or in connection with employment cannot be corrected by way of writ petitions. The petitions also would not be maintainable in order to challenge the action of the Registrar since the same is not an exercise of statutory power conferred upon him under the provisions of the Act or the Rules but an exercise of powers by him under service regulations framed under Bye-laws having no force of law. The writ petition also will not be maintainable since none of the three Societies are discharging any public functions.” 12. The writ petition also will not be maintainable since none of the three Societies are discharging any public functions.” 12. Indisputably, it was mandated firstly that the Himachal Pradesh State Co- operative Bank Limited was not the other authority to be characterised as State within the meaning of Article 12 of the Constitution and was also not an authority for the purpose of Article 226 of the Constitution. It was further held that the order passed by the Society under its service regulations against its employees as such or any kind of employment cannot be corrected by way of writ petition. The petitions to challenge the action of Registrar were also held to be not maintainable since the same was not an exercise of statutory powers conferred upon him under the provisions of the Act or the rules but an exercise of powers by him under service regulations framed under bye-laws having no force of law. Further, the writ petitions against the bank were held to be not maintainable since the Society was not discharging any public functions. 13. The pronouncement in C. K. Malhotra (supra) came for consideration before a Full bench of this Court in CWP No. 3634 of 2012, titled as, Vikram Chauhan vs. Managing Director & others along with connected matters reported in Latest HLJ 2013 (H.P.) 742 (FB). The Hon’ble Full Bench of this Court after taking notice of the question referred to it observed as under:- “The Division Bench while hearing CWP NO 3634 of 2012-D vide order dated 20 July, 2012 has referred the following question to be considered by the Full Bench. "Whether the Kangra Central Co- operative Bank, the Himachal Pradesh State Co-operative Bank Ltd and the Jogindra Central Co- operative Bank, are 'State' within the meaning of Article 12 of the Constitution of India and whether a writ would lie against them?" 2. The question, as formulated raises two independent issues. Firstly, whether the State Cooperative Banks are State within the meaning of Article 12 of the Constitution? The second question, which, in our view is an independent question, is, whether a writ would lie against those Cooperative Banks.” 14. After discussing the law on the issues, Hon’ble Full Bench answered the formulated issues as under:- “15. Firstly, whether the State Cooperative Banks are State within the meaning of Article 12 of the Constitution? The second question, which, in our view is an independent question, is, whether a writ would lie against those Cooperative Banks.” 14. After discussing the law on the issues, Hon’ble Full Bench answered the formulated issues as under:- “15. For the view taken by us on both facets of the referred questions, proceed to answer the Reference as under: (1) The question as to whether Kangra Bank is a State within the meaning of Article 12 of the Constitution of India, is no more res Integra. It has been authoritatively answered by the Apex Court in S.S. Rana's case (supra). (2) Even in the case of H.P, State Cooperative Bank Ltd., the question has been answered by the Division Bench of our High Court in Chandresh Kumar Malhotra's case (supra). There is no conflicting decision of coordinate Bench of this Court necessitating pronouncement on that question by the Full Bench. (3) In the case of Jogindra Central Cooperative Bank, the decision in Mehar Chand's case (supra) is rendered by the learned Single Judge of this Court and no conflicting decision of the co-ordinate Bench muchless of the Division Bench or Larger Bench of our High Court with regard to the stated Bank has been brought to our notice. In any case, the said question can be conveniently answered by the Division Bench in appropriate proceedings whether in the form of writ petition or Reference made by the learned Single Judge of this Court, as the case may be. As and when such occasion arises, the issue can be answered on the basis of settled legal principles and including keeping in mind the exposition of S.S. Rana's case (supra) of the Apex Court concerning another Cooperative Bank constituted under the Himachal Pradesh State Cooperative Act. (4) As regards the second part of the question as to whether a writ would lie against the stated Cooperative Banks, we hold that it is not appropriate to give a definite answer to this question. For, it would depend on several attending factors. (4) As regards the second part of the question as to whether a writ would lie against the stated Cooperative Banks, we hold that it is not appropriate to give a definite answer to this question. For, it would depend on several attending factors. Further, even if the said Banks were held to be not a State within the meaning of Article 12, the High Court in exercise of powers under Article 226 of the Constitution of India, can certainly issue a writ or order in the nature of writ even against any person or Authority, if the fact situation of the case so warrants. In other words, writ can lie even against a Corporative Society. Whether the same should be issued by the High Court would depend on the facts of each case.” 15. Thus, the judgment passed by the Hon’ble Division Bench in C.K. Malhotra was upheld in so far as it had held that the Bank was not a State or other authority within the meaning of Article 12 of the Constitution. However, while answering the second facet of the issue, the Hon’ble Full Bench specifically held that no definite answer could be given to the question referred to it and would depend on several attending factors. Even if the Bank was held to be not a State within the meaning of Article 12 of the Constitution, the High Court in exercise of powers under Article 226 of the Constitution was held jurisdiction to issue a writ or order in nature of writ even against any person or authority, if the fact situation of the case warranted. It has further been held that the writ can lie even against the co-operative authorities, however, its maintainability would depend on the facts of each case. 16. Recently, in petition for Special Leave to Appeal (Civil) No. 1246 of 2015, titled as, The Kangra Central Co-operative Bank Pensioners Welfare Association (Regt.) vs. State of H.P., three Judges Bench of the Hon’ble Supreme Court after taking the notice of what has been held by the Full Bench in Vikram Chauhan (supra) has held as under:- “The issue concerning maintainability was considered by the Full bench and the observations made by the Full bench summed up the law on the point quite succinctly. On the facts as found by the Single Judge, which were recorded in paragraph 19 of the judgment, without entering into any other question, in our view, the petition as filed was perfectly maintainable. The Division Bench was in error in setting aside the view taken by the Single Judge in allowing the writ petition and in rejecting the review petition.” 17. In view of above exposition, it cannot be said that the writ against the Bank will not be maintainable in any circumstance.” 29. In light of above discussion, I find no merit in this petition and the same is dismissed 30. The petition, is accordingly, disposed of, so also the pending applications, if any.