Bal Krishna Jha, retired teacher v. The State of Bihar

: Mr. Ratan Kumar Kumar, Advocate. For the Respondent/s : Mr. G.K. Agrawal, G.A. 10 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 Patna High Court CWJC No.18373 of 2013 (2) dt.24-10-2013 2 24-10-2013 Heard learned counsel for the parties as with regard to the following relief prayed in this writ application: “.. direct the Respondents to give Selection Grade Promotion increment from due dates in the light of Similar matter has already been disposed of and paid Selection Grade Promotion Increment Vide3 CWJC No. 4168 of 2002 disposed of on 24.08.2009 this petitioners are also Similarly Situated teachers and pay the Consequential Benefits..” Learned counsel for the petitioners, at the outset, has submitted that he would be satisfied if this Court gives a direction to the respondents to consider the representation of the petitioners for the aforementioned relief. In this regard, he has also placed reliance of an order of this Court dated 24.08.2009 in CWJC No. 4168 of 2002. Learned counsel for the State, on the other hand, while opposing the prayer of the petitioners in this writ application, has submitted that the petitioners are raising a stale claim inasmuch as the claim of Selection Grade Pay Scale of the petitioners in terms of the Government decision dated 18.12.1989 had become admissible with effect from 01.04.1990, but the petitioners, all of whom are retired teachers, have moved this Court for such relief at least after 20 years of the cause of action by filing the present writ application only on 12.09.2013. In the considered opinion of this Court, such belated claim of the petitioners for grant of Selection Grade Pay Scale to them with effect from 01.04.1990 must be rejected on the ground of delay and laches. It is not in dispute that all the petitioners were in Government service on the post of teacher and had retired in between January 2001 to 2008, as would be evident from Paragraph 6 of the writ application, which is quoted herein below: “6. That the petitioner no. 1 Balkrishna Jha joined in service on 4.09.1969 and his qualification as Graduate (B.A.) and retired on September. Petitioner no. 2 3 Patna High Court CWJC No.18373 of 2013 (2) dt.24-10-2013 Yogendra Praad joined on 01.02.1966 and he retired on July 2006. Petitioner No. 3 Dinesh Prasad joined in service on 29.07.1965 and he retired on 31.07.2008. Petitioner No. 5 Namely Gauri Shankar Prasad joined on 01.02.1966 and retired on January 2002. Petitioner no. 5 Ram Chandra Manjhi joined on 1.11.1963 and retired on 31.01.2001, petitioner no. 6 Shabbir Hussain joined in service on 1.4.1964 and retired on 31.10.2006, petitioner no. 7 Ram Deo Datta joined in service 2.8.1963 and retired on 31.1.2005, petitioner no. 8 Rajendra Jha joined in service on 22.7.1971 and retired on 31.3.2003. Petitioner no. 9 Nagendra Mahasetha joined in service 6.08.1962 and retired on 31.01.2005 and petitioner no. 10 Maheshwar Mishra joined in service on 15.10.1973 and retired on 30.11.2007”. In fact, when in paragraph-7 the petitioners have also stated that their claim for Selection Grade is with effect from

01.04.1990, nothing remains for speculation the writ application has been filed after at least 23 years of the cause of action. The issue relating to grant of financial benefits in terms of Time Bound Promotion/Selection Grade and the delay of even nine years was held to be fatal by the Apex Court in the case of Bhakra Beas Management Board v. Krishan Kumar VIJ & Another; {(2010) 8 SCC 701} wherein it was held as follows: “37. Yet, another question that draws our attention is with regard to delay and laches. In fact, Respondent 1‟s petition deserved to be dismissed only on that ground but surprisingly the High Court overlooked that aspect of the matter and dealt with it in a rather casual and cursory manner. The appellant had categorically raised the ground of delay of over eight years in approaching the High Court for grant of the said relief. But the High Court has simply brushed it aside and condoned such an inordinate, long and unexplained delay in a casual manner. Since, we have decided the matter on merits, thus it is not proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal”. Thus, in the present case, when delay is of more than two decades in moving this Court for grant of Selection Grade, the writ application is fit to be dismissed on account of delay and laches alone. 4 Patna High Court CWJC No.18373 of 2013 (2) dt.24-10-2013 The submission of Mr. Kumar that the case of the petitioners is covered by an order dated 24.08.2009 in CWJC No. 4168 of 2002 is also not tenable inasmuch as it would appear that the petitioner of CWJC No. 4168 of 2002, namely, Hira Lal Yadav, had not only moved this Court while he was continuing in service, but had moved this Court with regard to grant of his Selection Grade in the Matric Trained Pay Scale with effect from

1.4.1993 in view of the recommendation which had already been made by the Block Education Extension Officer. Thus, this Court, taking into account the date of recommendation and the petitioner, Hira Lal Yadav (supra), continuing in service, had been given liberty to file a representation. The facts of the aforesaid case being not similar to the present case, this Court would therefore is not inclined to give liberty to the petitioners to file a representation with a consequential direction for its disposal by the Respondents which would only lead to revival of a stale claim in view of law laid down by the Apex Court in the case of Union of India & Ors. v. M .K. Sarkar; {(2010) 2 SCC 59} wherein it has been held that a case which has already been lost on account of delay and laches, should not be allowed to be revived by issuing a direction of the Court in form of filing a representation and order to be passed therein by the authorities inasmuch as the Apex Court in that context had held as follows: the appellants “14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been considered by this Court in C. Jacob v. Director of Geology and Mining1: (SCC pp. 122-23, para 9) “9. The courts/tribunals proceed on assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the 5 Patna High Court CWJC No.18373 of 2013 (2) dt.24-10-2013 rejected, ex-employee 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 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 tribunals/High Courts representation. The routinely entertain such applications/petitions ignoring representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of laches gets obliterated or ignored.” the huge delay preceding the relief claimed limitation or

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 compliance with such direction, will extend limitation, or erase the delay and laches. 16. A court or tribunal, before directing “consideration” of a claim or representation should examine whether the claim or representation is with reference to a “live” issue or whether it is with reference to a “dead” or “stale” issue. If it is with reference to a “dead” or “stale” issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct “consideration” without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.” In view of the above law laid down by the Apex Court in the case of M.K.Sarkar (supra), this Court therefore can 6 Patna High Court CWJC No.18373 of 2013 (2) dt.24-10-2013 not allow now the petitioners to file a representation for grant of Selection Grade with effect from 01.04.1990. Thus, for the reasons indicated above, this writ application must fail and is, accordingly, dismissed. Sujit/- (Mihir Kumar Jha, J)