Rameshwar Ray vs The State Of Bihar & Ors.

“11.

We may now consider the objection of the appellants that in service matters, fence-sitters cannot ordinarily claim the benefit of a subsequent development merely because they may be similarly situated to persons who had diligently pursued their claims before the appropriate forum at the relevant time.

12.

In the present case, there was no representation whatsoever much less any proceedings before an appropriate forum initiated by the respondents until the judgment in LPA No. 105 of 2010 and its analogous cases dated 13.12.2012. The cause of action arose between the years 1998 and 2000. Thus, approaching the Court after more than twelve years, cannot be regarded as bona fide conduct.

13.

Further, the respondents were aware of what was ultimately held in the judgment dated 13.12.2012 in LPA No. 105 of 2010 and analogous cases, wherein the principle governing payment had been clearly spelt out. There is absolutely no explanation as to why despite being aware of the said judgment, the respondents, though not JBT Teachers, did not specifically plead before the High Court in their writ petition that their case was also covered by the principle laid down in the proceedings culminating in LPA No. 108 of 2012. Even the Division Bench of the High Court, while disposing of the writ petition filed by the respondents, granted relief in terms of LPA No. 105 of 2010 and analogous cases. Thus, there can be no ambiguity or confusion with regard to the intent and import of the order passed in the case of the respondents.

14.

We accordingly, hold that the order dated 10.01.2013 is required to be implemented in accordance with the principle laid down by the Division Bench in its judgment dated 13.12.2012 in LPA No. 105 of 2010 and analogous cases, that is, the respondents would be entitled to the initial of the pay scale attached to the posts of JBT Teachers, as revised from time to time. Thus, the respondents would be entitled to the pay scale of Rs. 6,400/- prior to 31.12.2005 and Rs. 10,300/- with effect from 01.01.2006, as a necessary consequence of the order passed by the High Court, which was required only to be implemented.”

“16.

At this stage, it would be relevant to take into consideration the judgments of the Hon’ble Supreme Court in the cases of C. Jacob vs Director of Geology and Mining & Another; (2008) 10 SCC 115, State of Jammu & Kashmir vs R.K Zalpuri & Others; AIR 2016 SC 3006 and Surjeet Singh Sahni vs State of Uttar Pradesh & Others; (2022) 15 SCC 536.

17.

In the case of C. Jacob (supra), with respect to filing of representation after much delay, getting an order from Court with respect to disposal of the representation and on an order being passed on merits disposing of the said representation contending that a fresh cause of action has arisen, the Hon’ble Supreme Court observed as follows :-

“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.

11.

When a direction 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 servant abandons service to take up 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. 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 indiscipline, 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.

14.

We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and care in issuing directions for “consideration”. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing “consideration” of such claims.

15.

The present case is a typical example of “representation and relief”. The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9-4-2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the petitioner has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18-7-1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned Single Judge could find fault with the Department of Mines and Geology, for failing to prove that a termination made in 1982, was preceded by an enquiry in a proceedings initiated after 22 years, when the Department in which the petitioner had worked had been wound up as long back as in 1983 itself and the new Department had no records of his service.”

18.

In the case of R.K Zalpuri (supra), the Hon’ble Supreme Court has held as follows :-

“20.

Having stated thus, it is useful to refer to a passage from City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Others, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus :-

“The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b)

the petition reveals all material facts;

(c)

the petitioner has any alternative or effective remedy for the resolution of the dispute;

(d)

person invoking the jurisdiction is guilty of unexplained delay and laches;

(e)

ex facie barred by any laws of limitation;

(f)

grant of relief is against public policy or barred by any valid law; and host of other factors.”

19.

In the case of Surjeet Singh Sahni (supra), the Hon’ble Supreme Court has held that mere filing of representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within a reasonable time. Paragraph no.8 of the judgment reads as follows :-

“8.

As observed by this Court in a catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within a reasonable time. If it is found that the writ petitioner is guilty of delay and laches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and laches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.”

20.

In view of the facts and circumstances of the case and the judgments of the Hon’ble Supreme Court as referred to herein above, the cause of action for the petitioner having arisen for the first time in the year 1972 when as per his case he was not granted the benefit of Teaching Cadre and atleast before his retirement in the year 2002, the delay and laches on the part of the writ petitioner of at least 17 years cannot be explained with the rejection of his representation. The Court is of the opinion that the writ application ought to have been dismissed on the ground of delay and laches alone and the learned Single Judge has erred in not taking into consideration the submissions made on this count on behalf of the appellant State of Bihar. The Court finds merit in the appeal.”