Saurabh Kumar Ram v. The State Of Bihar

“Learned counsel for the State prays for and is allowed to produce the letters quoted in the impugned order dated 18.2.2009 and 23.10.2008 along with the counter affidavit which must be in by the Principal Secretary of Education Department himself keeping in view that there happens to be a big confussion as with regard to the period of limitation in filing of the 3 complaint before the District Teachers Employment Appellate Tribunal. The Rules as they were notified either in the year 2006 or subsequently amended in the year 2008-2009 did not fix any period of limitation for filing of the complaint before District Teachers Employment Appellate Tribunal rather the provision was made for disposal of such complaint within a period of thirteen days. Thus, if there was no provision made in the Rule prescribing any limitation, the Principal Secretary of the Education Department by himself could not have issued any executive order by which period of limitation could have been prescribed. All these aspects, therefore, require to be gone into once the State will file the counter affidavit explaining not only the facts mentioned in this application but also the issue of limitation as discussed above.”

5. Pursuant to the aforementioned order of this Court, Mr. Amarjit Sinha, Principal Secretary of Education Department, has filed his counter affidavit and has explained the thing in a very graphic manner in paragraphs 3, 4, 5 and 6, being relevant, are quoted hereinbelow: “That with regard to the limited query, which this Hon’ble Court has been pleased to make, it is most respectfully submitted, that the earlier provision i.e. Rule 18 incorporated in Bihar 4 Panchayat Elementary Teacher (Employment and Service Condition) Rule, 2006 which provided that matters / complaints pertaining to appointment, service condition and other allied matters of Block teachers will be decided by the concerned Deputy Development Commissioner, and of Panchayat teachers by the concerned Block Development Officer within thirty days from the receipt of complaint, was later amended vide notification no.3148 dated 25.08.2008 whereby provision had been made for constituting of Appellate Authority at the district level. That is accordingly that vide Resolution no.3153 dated 25.08.2008 Appellate Authorities for adjudicating matter pertaining to Panchayat / Prakhand / Zila Parishad etc. had been constituted and clause 1(ii) of the said Resolution provided that normally within thirty days decision upon the Appeal is to be taken and in a special cases within 90 days. That it was vide notification no.3716 dated 23.10.2008 that the criteria / conditions for selection of members of the Appellate Authority, and their responsibilities had been notified, clause Kha (iv) of which provides that it would be compulsory for the Appellant to file his appeal within thirty days and matters received after thirty days, would be considered by the Authority only if it had plausible reasons. That later information had also been 5 issued by the Principal Secretary on 18.02.2009, stating that all matters pertaining to Panchayat Teacher is to be adjudicated only by the District Employment Appellate Authority, and also the Appeals in connection with 2nd phase teacher employment is to be filed within 30 days from the date of cause of action.”

6. As would be apparent, the Principal Secretary concedes that there was no limitation prescribed in the 2006 Rules and all that was intended under Rule 18 was that the adjudicatory forum should make efforts to dispose of the complaint so filed before it within a period of one month. In fact, the Tribunal came into picture only on 25.08.2008 and there also the provision was made for taking up the decision on the complaint within a period of thirty days and in special case within ninety days. That again cannot be said to be a period of limitation for filing the complaint rather there was obligation on the part of the Tribunal to dispose of the complaint within a fixed time frame. It would be found that in the Notification dated 23.10.2008 which was issued while constituting the Tribunal, a provision was made that the appeal must be filed within a period of thirty days but the beginning point of such thirty days was never mentioned. In order to explain this aspect it would be relevant to quote 6 Clause (iv) of the Notification dated 23.10.2008. “vihy drkZ }kjk fu;kstu ls lEcfU/kr lHkh izdkj dh vihy 30 fnuksa ds vUnj izkf/kdkj dks nsuk vfuok;Z gksxk A 30 fnuksa ds ckn izkIr vihy ij leqfpr dkj.k gksus ij gh izkf/kdkj }kjk fopkj fd;k tk ldsxk A **

7. If the aforesaid provision was to be taken one prescribing the period of limitation, the beginning point of such limitation also had to be defined. There is however no such beginning point in the aforesaid provision inasmuch as all it says that all the matters relating to employment has to be brought before Tribunal within thirty days but then there has to be a specific beginning point for computation of thirty days. In that view of the matter, this Court would find it difficult to read into the aforementioned provision as one prescribing a period of limitation.

8. The subsequent notice issued by the Principal Secretary on 18.02.2009, as contained in Annexure- B again is equally vague and cannot be read to be a provision laying down limitation for filing of the complaint before the Tribunal. Relevant portion of the Notice or Press communiqué issued by the Principal Secretary on 18.02.2009 is also quoted hereinbelow: ^^ vke yksxksa dks lwfpr fd;k tkrk gS fd 7 orZeku esa py jgs f}rh; f”k{kd fu;kstu ls lacaf/kr tks Hkh f”dk;r gks mls f”kdk;r mRiUu gksus dh frfFk ls 30 fnuksa ds vUnj fuf”pr :Ik ls vihyh; izkf/kdkj dks lefiZr dj nsa A **

9. As would be apparent from the afore mentioned portion of the notice of the Principal Secretary which was an information given to all who were participating in the second transaction of employment of the teacher and they were only made aware that if there was any complaint with regard to such employment they can file within thirty days of such complaint coming into existence. Again this provision cannot be said to be a strict provision which any and every statute laying down limitation must have. Here also there is no beginning point of limitation. This Court therefore again cannot read in between the lines to discover the limitation of a period of thirty days.

10. As a matter of fact this Court only recently has decided this very question relating to limitation in filing appeal (complaint) before the Tribunal at length in its order dated 15.7.2013 in C.W.J.C. No. 5495 of 2012 (Nilu Kumari Vs. State of Bihar and others) wherein it has been held as follows:- "Firstly it has to be noted that initially 8 when the redressal forum was provided in the Bihar Panchayat Prarambhik Shikshak (Niyogan and Seva Sart) Niyamawali-2006 the power to decide the appeal was vested in the Block Development Officer. No period of limitation was provided therein and a period of 30 days was only prescribed for deciding the appeal by the Block Development Officer as would be evidenced from the reading of Rule- 18 in 2006 Rules :- 18& f’kdk;r bl fu;ekoyh ds v/khu fu;kstu LFkkukUrj.k vFkok lsok lEcU/kh ekeyksa esa fdlh Hkh izdkj dh f’kdk;r dk fu.kZ; ysus dh ’kfDr iz[kaM f’k{kd ds ekeys esa mi fodkl vk;qDr dks gksxh ,oa iapk;r f’k{kd ds ekeys esa iz[k.M fodkl inkf/kdkjh dh gksxhA lEcU/kh inkf/kdkjh vf/kdre 30 fnuksa ds vUnj f’kdk;rksa dk fu.kZ; ns nsaxsA^^ The State Government by resolution no. 3153 dated 25.08.2008 had constituted the District Teachers Employment Appellate Tribunal and in the same also though it was an executive order, no period of limitation was prescribed. The notification which was issued on 23.10.2008 laying down service condition of the member of the Tribunal as also the manner of the functioning of the Tribunal, its rights and responsibility vide notification no. 3716 dated 23.10.2008 had made a provision that:- vihy drkZ }kjk fu;kstu ls lEcfU/kr lHkh 9 izdkj dh vihy 30 fnuksa ds vUnj izkf/kdkj dks nsuk vfuok;Z gksxk A 30 fnuksa ds okn izkIr vihy ij leqfpr dkj.k gksus ij gh izkf/kdkj }kjk fopkj fd;k tk ldsxk A As would be evident, that there was no beginning point of computing the charge of 30 prescribing aforementioned limitation in filing of the appeal. It has to be kept in mind that there is no original authority whose orders are only to be questioned, inasmuch as, in the matter relating to terms and conditions of service of a Panchayat Teacher can be made subject matter of an appeal before the Tribunal. The expression used in the Government notification dated

23.08.2008 does say that such appeal has to be filed within 30 days of the issuance of the appointment letter of the person concerned. By now is well settled that any interpretation of statute prescribing limitation cannot be made on the basis of implication or by way of inference. Reference connection may be usefully made to the judgment of the Apex Court in the case of Lala Bal Mukund vs Lajwanti and Ors reported in AIR 1975 SC 1089:- We do not wish to encumber this judgment with a detailed discussion of all the citations and the reasoning advanced therein in support of one or the other view. It will be sufficient to say that upon 10 the language of Section 12 (2) both the constructions are possible, but the one adopted by the majority of the courts, appears to be more consistent with justice and good sense. The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A Court ought to avoid an interpretation upon a statute of Limitation by implication or inference as may have a penalising effect unless it is driven to do so by irresistible force of language employed by the legislature. Be that as it may such provisions was an executive instruction issued vide memo no. 3716 dated 23.10.2008 as contained Annexure-C the counter affidavit of respondent no. 10 was never incorporated in the Rules. As a matter of fact the amendment in the Rules was brought only on 03.07.2009 vide notification no. 1056 which is Annexure-A to the counter affidavit of respondent no. 7 which reads as follows:- 3- fcgkj iapk;r izkjafHkd f’k{kd …fu;kstu ,oa lsok ’k(cid:217)kZ‰ fu;ekoyh] 2006 ds fu;e 18 dk izfrLFkkiu 1& m(cid:228) fu;ekoyh dk fu;e 18 fuEukafdr }kjk izfrLFkkfir fd;k tk;sxk %& 11 18& vihy %& bl fu;eokyh ds v/khu fu;kstu ,oa ’ksok’k(cid:217)kksZ ls lEcfU/kr vihy lquus dh ’kf(cid:228) ftyk Lrj ij ljdkj }kjk xfBr ,d ;k ,d ls vf/kd lnL;ksa dh izkf/kdkj dks gksxhA ekuo lalk/ku fodkl foHkksx ds }kjk izkf/kdkj dh LFkkiuk ,oa lsok ’krksZ dk fu/kkZj.k fd;k tk;sxkA vihyh; izkf/kdkj dk xBu lsok fuo‘r fcgkj U;kf;d lsok] Hkkjrh; iz’kklfud lsok] fcgkj i’kklfud lsok] f’k{kk lsok ds inkf/kdkfj;ksa ,oa vko’;drkuqlkj f'k{kkfonksa ls fd;k tk;sxkA^^ Thus neither in the 2006 Rules nor in the 2009 amended Rules, any period of limitation has been prescribed for filing of the complaint which has loosely been also described as an appeal. In fact there being no order of the original authority, the nomenclature of appeal is more or less to be understood in the context of Rule-18 which only says about filing of complaint before the Tribunal. It is in this background that the press communique of the Principal Secretary of the Human Resources Development Department dated 17.04.2010 which is more or less by way notice/information has to be understood inasmuch as the same reads as follows:- ekuo lalk/ku fodkl foHkkx f”k{kd fu;kstu ls lacaf/kr f’kdk;r@vihy ds fu"iknu gsrq vko’;d lwpuk f”k{kd fu;kstu ls lacaf/kr f”kdk;rksa@vihyksa rFkk fu;ksftr f”k{kdksa ds lsok ”krksZ ls lacaf/kr vihyksa@f”kdk;rksa ds fu"iknu gsrq ljdkj }kjk jkT; ds izR;sd ftyk esa ^ftyk f’k{kd fu;kstu vihyh; 12 izkf/kdkj^ dk xBu fd;k x;k gSA bl izsl foKfIr ds ek/;e ls vke yksxksa ,oa lHkh lacaf/kr dks lwfpr fd;k tkrk gS fd f”k{kd fu;kstu ¼ f”k{kk fe=ksa ds yafcr vihy lfgr½ ds tks Hkh f”kdk;r@vihy gS vFkok fu;ksftr f”k{kdksa ds lsok ”krksZ ls lacaf/kr tks Hkh vihy@f”kdk;r gS mldh lquokbZ ,oa fu"iknu ftyk ds ^^ftyk f”k{kd fu;kstu vihyh; izkf/kdkj^^ ds }kjk gh fd;k tk;sxkA ;g Li"V fd;k tkrk fd f”k{kd fu;kstu ,oa lsok ”krksZ ls lacaf/kr vihy@f”kdk;r ftyk ds izkf/kdkj ds le{k gh nk;j djsaA fdlh ekeys dh vihy lkekU;r% 30 fnuksa ds vUnj nkf[ky fd;k tkuk gSA ;g Hkh lwfpr djuk gS fd f”k{kd fu;kstu ls lacaf/kr vihy@f”dk;rksa ds fu"iknu dk ,d ek= vf/kdkj ^^ftyk f”{kd fu;kstu vihyh; izkf/kdkj^^ dks gS] fdlh vU; dks ughaA vr% lacf/kr O;fDr f”k{kd fu;kstu ls lacaf/kr f”kdk;rksa ds fy, vius ftys ds ftyk f”k{kd fu;kstu vihyh; izkf/kdkj ds le{k gh vkosnu djsa] vU;= ughaA ih-vkj-&467f”k{kk½10&11 …vatuh dqekj flag‰ iz/kku lfpo (underlining for emphasis) From the aforesaid press communiqué, it would be clear that the appeal and complaint in fact are the same thing and again even by this executive order all that has been said is that ordinarily the appeal in any matter has to file within 30 days. There is again no beginning point of limitation for computing the period of 30 days. Thus on the basis of the pleadings on record, the submission of learned counsel for the respondents that there is a fixed prescribed 13 period of appeal of 30 days which would commence from the date of appointment on the post of concerned Panchayat Teacher cannot be accepted."

11. Thus, the long and short of the issue in hand is that there is no statutory provision made by the State Government whereunder any period of limitation had been laid down for filing of appeal i.e. complaint before the Tribunal.

12. In that view of the matter, this Court would hold the impugned order to be bad and the same is, accordingly, quashed and the matter is remitted back to the Tribunal to decide the claim of the petitioner on merit without non-suiting him on the ground of limitation.

13. Before parting with, this Court however must make it clear that an application barred by limitation and an application being not entertained in the ground of delay by the Tribunal while refusing to exercise its jurisdiction are two different things. In a given case even if the application may not be barred by limitation but the Tribunal can refuse to grant relief on the ground of delay if the position cannot be reversed on account of the person moving the Tribunal belatedly after the right of the other 14 person has been perfected. Thus the Tribunal can refuse to examine the matter on merit by holding that there is a gross delay in approaching the Tribunal in filing of the complaint but that will not be on the ground its being barred by limitation. In that case the Tribunal will have to infact consider the effect on the person whose continuation is questioned by the applicant after a considerable lapse of time. The Tribunal therefore will have to take a balanced view of the circumstances of both the applicant and person/authority whose action/continuation is questioned.

14. With the aforementioned observation and direction, this application is disposed of. A.Ahmad/- (Mihir Kumar Jha, J)