M.V.Ramalingam v. The Government of Tamilnadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10-2-2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.30158 of 2006M.V.Ramalingam ..Petitionervs1.The Government of Tamilnadu by its Secretary to Government Municipal Administration and Water Supply Department Fort St. George, Madras 9.2.The Director of Town Panchayat Kuralagam, Madras 600 108.3.The Collector Periyar District Erode ..RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for a writ of mandamus to direct the first respondentto promote the petitioner as Executive Officer, Grade-I, with effectfrom 30.11.1969, i.e., the date of passing the test as has been donein the case of one Mr.Chandrasekaran in G.O.No.208, RuralDevelopment, dated 9.3.1982 with all monetary and senioritybenefits.For Petitioner: Mr.B.DiwakarFor Respondents: Mrs.Sneha, Government AdvocateORDERThe petitioner was employed as a Junior Assistant in a TownPanchayat. According to the petitioner, he joined the service on2.4.1962 in Anthiyoor Panchayat Union. During 1967, he was promotedas a Head Clerk. Subsequently, he was reverted as a JuniorAssistant. From 12.11.1974 onwards, he was posted as an ExecutiveOfficer, Grade-II. Under the relevant Service Rules, a JuniorAssistant with five years of service and who had also passed thedepartmental tests, is entitled for promotion as an ExecutiveOfficer, Grade-I. According to the petitioner, he had completed thefive year period on 2.4.1967, and had also passed the required teston 30.11.1969. In that view of the matter, he was eligible to getposted as Executive Officer. The petitioner did not make any claimfor such a posting either immediately after the passing of the testor within a reasonable time thereafter. He waited for one https://hcservices.ecourts.gov.in/hcservices/ Chandrasekaran who was similarly placed, to move the Government foran appropriate order, and even that Chandrasekaran by orders of theGovernment in G.O.Ms.No.298, Rural Development, dated 9.3.1982, gotpromotion as Executive Officer, Grade-I, with effect from the dateof passing the order. The petitioner also did not make a claimimmediately thereafter, and just two years before his retirement, hefiled O.A.No.3089/97 seeking for a re-fixation of his seniority bygrant of posting as Executive Officer with effect from 30.11.1969 onthe basis of a similarly placed person. 2.The Tribunal without reference to Sec.21, admitted the O.A.and issued notice to the respondents. On the abolition of theTribunal, the matter stood transferred to this Court and wasrenumbered as W.P.No.30158 of 2006.3.Mr.Diwakar, the learned Counsel appearing for the petitionersubmitted that the petitioner was well within time, and he is onlyseeking a parity with the other similarly placed employees, andtherefore, his claim can be entertained. He also submitted that hisrepresentation dated 8.2.1996, was not considered, and therefore, hehas approached the Tribunal for a relief. 4.In this context, it is necessary to refer to the judgment ofthe Supreme Court in C.Jacob Vs. Director of Geology & Mining andanother reported in 2008 AIR SCW 7233. Paragraphs 6 to 8 read asfollows:"6.Let us take the hypothetical case of an employee who isterminated from service in 1980. He does not challenge thetermination. But nearly two decades later, say in the year2000, he decides to challenge the termination. He is awarethat any such challenge would be rejected at the thresholdon the ground of delay (if the application is made beforeTribunal) or on the ground of delay and laches (if a writpetition is filed before a High Court). Therefore, insteadof challenging the termination, he gives a representationrequesting that he may be taken back to service. Normally,there will be considerable delay in replying suchrepresentations relating to old matters. Taking advantageof this position, the ex-employee files anapplication/writ petition before the Tribunal/High Courtseeking a direction to the employer to consider anddispose of his representation. The Tribunals/High Courtsroutinely allow or dispose of such applications/petitions(many a time even without notice to the other side),without examining the matter on merits, with a directionto consider and dispose of the representation. Thecourts/tribunals proceed on the assumption, that everycitizen deserves a reply to his representation. Secondlythey assume that a mere direction to consider and disposeof the representation does not involve any 'decision' onrights and obligations of parties. Little do they realizethe consequences of such a direction to 'consider'. If therepresentation is considered and accepted, the ex-employeegets a relief, which he would not have got on account ofthe long delay, all by reason of the direction to https://hcservices.ecourts.gov.in/hcservices/ 'consider'. If the representation is considered andrejected, the ex-employee files an application/writpetition, not with reference to the original cause ofaction of 1982, but by treating the rejection of therepresentation given in 2000, as the cause of action. Aprayer is made for quashing the rejection ofrepresentation and for grant of the relief claimed in therepresentation. The Tribunals/High Courts routinelyentertain such applications/petitions ignoring the hugedelay preceding the representation, and proceed to examinethe claim on merits and grant relief. In this manner, thebar of limitation or the laches gets obliterated orignored.7.Every representation to the government for relief, maynot be replied on merits. Representations relating tomatters which have become stale or barred by limitation,can be rejected on that ground alone, without examiningthe merits of the claim. In regard to representationsunrelated to the department, the reply may be only toinform that the matter did not concern the department orto inform the appropriate department. Representations withincomplete particulars may be replied by seeking relevantparticulars. The replies to such representations, cannotfurnish a fresh cause of action or revive a stale or deadclaim.8.When a direction is issued by a court/tribunal toconsider or deal with the representation, usually thedirectee (person directed) examines the matter on merits,being under the impression that failure to do may amountto disobedience. When an order is passed considering andrejecting the claim or representation, in compliance withdirection of the court or tribunal, such an order does notrevive the stale claim, nor amount to some kind of'acknowledgment of a jural relationship' to give rise to afresh cause of action."5.The petitioner cannot move the Tribunal to revive a cause ofaction which took place 27 years ago and still claim that he waswell within time in terms of Sec.21 of the Administrative TribunalAct. Even though this Court is not trapped by such a provision andthe jurisdiction under Article 226 is much wider, yet a stale claimcannot be entertained even by this Court as directed by the SupremeCourt in C.Jacob's case that only a vigilant person will get relieffrom the Court, and such a cause of action cannot be revived bysending repeated representations. 6.In the light of the above, the writ petition is misconceived,and accordingly, it stands dismissed. No costs.sd/-Asst.Registrar/true copy/Sub Asst.Registrarnsv/ https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to the Government of Tamilnadu Municipal Administration and Water Supply Department Fort St. George, Madras 9.2.The Director of Town Panchayat Kuralagam, Madras 600 108.3.The Collector Periyar District Erode+ 1 c.c. to The Government Pleader. S.R.No.5788. WP No.30158 of 2006KJI (CO)GSK 13.02.2009.