In the latter case their Lordships of the Supreme Court while considering the exceptions to the normal rule of limitation, held as under:--
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy 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 wrong will apply. As a consequence, the High Court 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."
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Writ Petition No. 133 SB of 2008.
Habib Ali ....................................Petitioner.
Versus
State of U.P. and others. ..........................Opposite parties.
Hon'ble Shri Narayan Shukla, J.
Hon'ble Rajan Roy, J.
(Oral- Hon'ble Rajan Roy, J.)
Dated;06.04.2015
Citation;2015 (4) AWC 4174.
Heard Sri Pradeep Sharma, learned counsel for the petitioner as well as learned Standing Counsel for the opposite parties.
The petitioner herein has challenged the judgment of U. P. Public Services Tribunal dated 07.06.2007 passed in Claim Petition No. 1640 of 1994 whereby the claim petition filed by the petitioner seeking promotion as Assistant Grade-III in the U. P. Avas Evam Vikas Parishad with effect from the date of promotion of his juniors, has been dismissed on the ground of being barred by limitation prescribed under the U. P. Public Services Tribunal Act, 1976. He has also challenged the judgment dated 05.09.2007 whereby the review petition no. 61 of 2007 has also been dismissed.
The contention of learned counsel for the petitioner is that the persons junior to him i.e. opposite parties nos. 5 and 6 before the Tribunal were considered and promoted to the post in question in the year 1984 but the petitioner was not selected. The petitioner again applied for being considered for promotion to Class-III post in the year 1992 but again he was not promoted. It is said that the petitioner preferred representations dated 11.09.1984 and 24.01.1986 which remained pending. As the matter of the petitioner was under consideration, therefore, he did not approach the Tribunal earlier and filed the claim in question only in the year 1994. Therefore, the rejection of claim of the petitioner on the ground of limitation was not justified. For the same reason the rejection of the review petition was also not justified. The petitioner had clearly disclosed the dispatch number relating to the representations submitted by him, therefore, his claim could not be said to be barred by time. In support of his contention the learned counsel for the petitioner has relied upon the following judgments:--
1. State of M.P. Vs. Bani Singh, reported in 1990 (2) SLR 798
2. Sagayanathan and others Vs. Divisional Personal Officer reported in AIR 1991 SC 424
3. Gopi Behari Sahai Vs. District Railway Manager,Central Railway, Jhansi reported in [(1995) 3 UPLBEC 89 (Trib)]
4. Mohammad Ahmad Vs. U. P. State Electricity Board, Lucknow and others, reported in [(1997) 2 UPLBEC 880]
5. Rajarshi Tandon Mahila Mahavidyalaya & others Vs. State of U.P. & others, reported in [1998(2)LBESR 330 (All)]
6. Sarabjit Singh Vs. Ex. Major B. D. Gupta and others, reported in 2000 SCC (L&S) 821.
7. Ashok Kumar Vs. State of Bihar & others, reported in AIR 2008 SC 2723
8. U.O.I. Vs. Hemraj Singh Chouhan, reported in (2010)1 SCC (L & S) 1002.
9. A. Satya Narayana & others Vs. S. Purushottam & others, reported in (2008) 2 SCC ( L & S) 279
10. Radheshyam Vs. U.P. State Public Services Tribunal, reported in 2011 (24) LCD 1485.
11. Rama Kant Dixit Vs. U. P. Public Services Tribunal, reported in 1999 SCD 118
On the other hand learned Standing Counsel has opposed the writ petition and has submitted that the impugned judgments do not suffer from any error.
Having heard learned counsel for the parties and perused the records we do not find any error in the impugned judgments. Section 5 (1) (b) of the U. P. Public Services (Tribunal) Act, 1976 reads as under:--
"5(1)(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 were 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 ma6y 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:
Provided further that nothing in this clause as substituted by the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 1985 shall affect any reference made before and pending at the commencement of the Act."
The limitation for preferring a petition before the U. P. Public Services Tribunal in the year 1984 was three years. By Act 13 of 1985 the period of limitation for such reference was prescribed as one year, provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 was 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 U. P. Public Services (Tribunals) (Amendment) Act, 1985 whichever period expires earlier.
The cause of action, if any, for being considered for promotion to the post in question arose in the year 1984. In fact in paragraph 14 of the counter affidavit filed by the opposite parties before the Tribunal it is mentioned that petitioner was also considered in the selection held in the year 1984 but was not recommended by the Selection Committee. The rejoinder affidavit of the petitioner does not contain any satisfactory reply in this regard. Once the petitioner was considered for promotion in 1984 and based on the same selection persons junior to him were promoted on 14.12.1984 then the cause of action arose on the said date and as per limitation prescribed in the U. P. Public Services Tribunal Act, 1976 the claim petition could have been preferred by the petitioner within a period of one year from coming into force of the 1985 amendment but this was not done. Merely because the petitioner alleges to have submitted representation in the year 1984 and thereafter in the year 1986, the receipt of which is denied by opposite parties, that too non-statutory representations, does not mean that he could maintain the claim petition for promotion with effect from the date of promotion of his juniors i.e. 14.12.1984, in the year 1994 i.e. almost 10 years after the cause of action arose. It is trite that mere making of repeated representations does not stop the limitation once it has started running. Reference may be made in this regard to the 7 Judge decision of the Supreme Court in the case of S.S. Rathore Vs. State of Madhya Pradesh, reported in (1989)4 SCC 582, wherein their Lordships held; "submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation", which has been followed subsequently in the case of Union of India Vs. Har Dayal, reported in (2010) 1 SCC 394.
As per Section 5 (1) (b) of the Act of 1976 the provisions of the Limitation Act, 1963 apply mutatis mutandis to a reference under Section 4 of the Act of 1976, as if, the reference were a suit filed in a Civil Court. As Section 5 of the Limitation Act is not applicable to suits, therefore, ipso facto it does not apply to a reference under Section 4 of the Act, 1976. There is no power available to the U. P. Public Services Tribunal to condone the delay or extend the limitation in filing a petition before it, as is available to the Tribunals established under the Administrative Tribunals Act, 1985. As the petitioner was considered for promotion in 1984 but was not recommended, it can also not be said that he had a continuing cause of action. The wrongful act in this case occurred in 1984 when the petitioner was considered but not recommended and juniors were promoted. This wrongful act caused a complete injury. There was no continuing wrong even though the damage resulting from the act may have continued. In this regard reference may be made to the pronouncement of the Supreme Court in the case of Balakrishna Savalram Pujari Waghmare Vs. Sheo Dhyaneshwar Maharaj Sansthan, reported in AIR 1959 SC 798, as followed in the subsequent decision in the case of U.O.I. Vs. Tarsem Singh, reported in (2008)8 SCC 648. In the latter case their Lordships of the Supreme Court while considering the exceptions to the normal rule of limitation, held as under:--
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy 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 wrong will apply. As a consequence, the High Court 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."
Thus the petitioner's case, though it does not involve a continuing or recurring cause, even otherwise, it falls in the exception to the exceptions referred to above.
The judgments relied upon by the learned counsel for the petitioner are of no help to him. Considering the reasoning given by the Tribunal we do not find any error in the same. The claim petition was clearly barred by limitation and irrespective of the submissions of learned counsel for the petitioner and the decisions cited by him we are unable to persuade ourselves to take any other view in the matter, contrary to the view taken by the Tribunal.
The writ petition is accordingly dismissed.
06.04.2015
Print Page
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy 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 wrong will apply. As a consequence, the High Court 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."
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Writ Petition No. 133 SB of 2008.
Habib Ali ....................................Petitioner.
Versus
State of U.P. and others. ..........................Opposite parties.
Hon'ble Shri Narayan Shukla, J.
Hon'ble Rajan Roy, J.
(Oral- Hon'ble Rajan Roy, J.)
Dated;06.04.2015
Citation;2015 (4) AWC 4174.
Heard Sri Pradeep Sharma, learned counsel for the petitioner as well as learned Standing Counsel for the opposite parties.
The petitioner herein has challenged the judgment of U. P. Public Services Tribunal dated 07.06.2007 passed in Claim Petition No. 1640 of 1994 whereby the claim petition filed by the petitioner seeking promotion as Assistant Grade-III in the U. P. Avas Evam Vikas Parishad with effect from the date of promotion of his juniors, has been dismissed on the ground of being barred by limitation prescribed under the U. P. Public Services Tribunal Act, 1976. He has also challenged the judgment dated 05.09.2007 whereby the review petition no. 61 of 2007 has also been dismissed.
The contention of learned counsel for the petitioner is that the persons junior to him i.e. opposite parties nos. 5 and 6 before the Tribunal were considered and promoted to the post in question in the year 1984 but the petitioner was not selected. The petitioner again applied for being considered for promotion to Class-III post in the year 1992 but again he was not promoted. It is said that the petitioner preferred representations dated 11.09.1984 and 24.01.1986 which remained pending. As the matter of the petitioner was under consideration, therefore, he did not approach the Tribunal earlier and filed the claim in question only in the year 1994. Therefore, the rejection of claim of the petitioner on the ground of limitation was not justified. For the same reason the rejection of the review petition was also not justified. The petitioner had clearly disclosed the dispatch number relating to the representations submitted by him, therefore, his claim could not be said to be barred by time. In support of his contention the learned counsel for the petitioner has relied upon the following judgments:--
1. State of M.P. Vs. Bani Singh, reported in 1990 (2) SLR 798
2. Sagayanathan and others Vs. Divisional Personal Officer reported in AIR 1991 SC 424
3. Gopi Behari Sahai Vs. District Railway Manager,Central Railway, Jhansi reported in [(1995) 3 UPLBEC 89 (Trib)]
4. Mohammad Ahmad Vs. U. P. State Electricity Board, Lucknow and others, reported in [(1997) 2 UPLBEC 880]
5. Rajarshi Tandon Mahila Mahavidyalaya & others Vs. State of U.P. & others, reported in [1998(2)LBESR 330 (All)]
6. Sarabjit Singh Vs. Ex. Major B. D. Gupta and others, reported in 2000 SCC (L&S) 821.
7. Ashok Kumar Vs. State of Bihar & others, reported in AIR 2008 SC 2723
8. U.O.I. Vs. Hemraj Singh Chouhan, reported in (2010)1 SCC (L & S) 1002.
9. A. Satya Narayana & others Vs. S. Purushottam & others, reported in (2008) 2 SCC ( L & S) 279
10. Radheshyam Vs. U.P. State Public Services Tribunal, reported in 2011 (24) LCD 1485.
11. Rama Kant Dixit Vs. U. P. Public Services Tribunal, reported in 1999 SCD 118
On the other hand learned Standing Counsel has opposed the writ petition and has submitted that the impugned judgments do not suffer from any error.
Having heard learned counsel for the parties and perused the records we do not find any error in the impugned judgments. Section 5 (1) (b) of the U. P. Public Services (Tribunal) Act, 1976 reads as under:--
"5(1)(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 were 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 ma6y 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:
Provided further that nothing in this clause as substituted by the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 1985 shall affect any reference made before and pending at the commencement of the Act."
The limitation for preferring a petition before the U. P. Public Services Tribunal in the year 1984 was three years. By Act 13 of 1985 the period of limitation for such reference was prescribed as one year, provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 was 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 U. P. Public Services (Tribunals) (Amendment) Act, 1985 whichever period expires earlier.
The cause of action, if any, for being considered for promotion to the post in question arose in the year 1984. In fact in paragraph 14 of the counter affidavit filed by the opposite parties before the Tribunal it is mentioned that petitioner was also considered in the selection held in the year 1984 but was not recommended by the Selection Committee. The rejoinder affidavit of the petitioner does not contain any satisfactory reply in this regard. Once the petitioner was considered for promotion in 1984 and based on the same selection persons junior to him were promoted on 14.12.1984 then the cause of action arose on the said date and as per limitation prescribed in the U. P. Public Services Tribunal Act, 1976 the claim petition could have been preferred by the petitioner within a period of one year from coming into force of the 1985 amendment but this was not done. Merely because the petitioner alleges to have submitted representation in the year 1984 and thereafter in the year 1986, the receipt of which is denied by opposite parties, that too non-statutory representations, does not mean that he could maintain the claim petition for promotion with effect from the date of promotion of his juniors i.e. 14.12.1984, in the year 1994 i.e. almost 10 years after the cause of action arose. It is trite that mere making of repeated representations does not stop the limitation once it has started running. Reference may be made in this regard to the 7 Judge decision of the Supreme Court in the case of S.S. Rathore Vs. State of Madhya Pradesh, reported in (1989)4 SCC 582, wherein their Lordships held; "submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation", which has been followed subsequently in the case of Union of India Vs. Har Dayal, reported in (2010) 1 SCC 394.
As per Section 5 (1) (b) of the Act of 1976 the provisions of the Limitation Act, 1963 apply mutatis mutandis to a reference under Section 4 of the Act of 1976, as if, the reference were a suit filed in a Civil Court. As Section 5 of the Limitation Act is not applicable to suits, therefore, ipso facto it does not apply to a reference under Section 4 of the Act, 1976. There is no power available to the U. P. Public Services Tribunal to condone the delay or extend the limitation in filing a petition before it, as is available to the Tribunals established under the Administrative Tribunals Act, 1985. As the petitioner was considered for promotion in 1984 but was not recommended, it can also not be said that he had a continuing cause of action. The wrongful act in this case occurred in 1984 when the petitioner was considered but not recommended and juniors were promoted. This wrongful act caused a complete injury. There was no continuing wrong even though the damage resulting from the act may have continued. In this regard reference may be made to the pronouncement of the Supreme Court in the case of Balakrishna Savalram Pujari Waghmare Vs. Sheo Dhyaneshwar Maharaj Sansthan, reported in AIR 1959 SC 798, as followed in the subsequent decision in the case of U.O.I. Vs. Tarsem Singh, reported in (2008)8 SCC 648. In the latter case their Lordships of the Supreme Court while considering the exceptions to the normal rule of limitation, held as under:--
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy 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 wrong will apply. As a consequence, the High Court 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."
Thus the petitioner's case, though it does not involve a continuing or recurring cause, even otherwise, it falls in the exception to the exceptions referred to above.
The judgments relied upon by the learned counsel for the petitioner are of no help to him. Considering the reasoning given by the Tribunal we do not find any error in the same. The claim petition was clearly barred by limitation and irrespective of the submissions of learned counsel for the petitioner and the decisions cited by him we are unable to persuade ourselves to take any other view in the matter, contrary to the view taken by the Tribunal.
The writ petition is accordingly dismissed.
06.04.2015
No comments:
Post a Comment