S.Arunasigamalai v. The Secretary to Government, Home Department, Secretariat, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.02.2009 CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NOS.25045, 29686 AND 29689 OF 2006S.Arunasigamalai ..Petitioner in W.P.No.25045 of 2006S.Veluchamy ..Petitioner in W.P.No.29686 of 2006S.Vijayaraghavan ..Petitioner in W.P.No.29689 of 2006Vs.1.The Secretary to Government, Home Department, Secretariat, Chennai-9.2.The Director General of Police, Admirality House, Madras-2.3.Durairaj (3280) Inspector of Police, Trippadur Town, ..Respondents in North Arcot District all these petitions These writ petitions have been preferred under Article 226 ofthe Constitution of India praying for the issue of a writ ofdeclaration to declare that the Rule 9 of the Adhoc Rules issued inG.O.Ms.No.1258 Home Department dated 9.5.73 is ultra vires of therule under Articles 14 and 16 of the Constitution of India and toquash G.O.Ms.No.3(D)/386 Home Department, dated 26.11.1996 of thefirst respondent and order in Rc.No.75699/NGB.I(1)/96, dated24.7.1996 of the second respondent, to quash G.O.3(D) No.242, dated27.09.1996 of the first respondent and also to quash G.O.Ms.No.3(D)/15, Home Department, dated 5.2.1997 of the first respondent andconsequently, direct the respondents to refix the seniority of theapplicant above the third respondent with all consequentialbenefits. For Petitioners : Mr.A.KalaiselvanFor Respondents : Mrs.Sneha, GA https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERHeard both sides. In view of the interconnection between thesethree writ petitions, they were heard together and a common order ispassed.2.In W.P.No.25045 of 2006, the petitioner originally filedO.A.No.3756 of 1997 before the State Administrative Tribunal,challenging the orders, dated 9.5.1973, 24.7.96 and 26.11.1996. Theorder, dated 9.5.1973 is the Government Order in G.O.Ms.No.1258,Home Department, in which adhoc rule for temporary post of Grade IConstable was issued. Pursuant to the said adhoc rule, severalpersons were promoted. It is the case of the petitioner that theclaim of the petitioner was overlooked and juniors were promoted.Thereafter, the petitioner sent a representation on 05.10.1995. Hewas directly recruited as Grade I Police Constable on 01.02.1972 andthereafter, he was promoted as Head Constable on 30.05.1979 andsubsequently, on 31.12.1981. It was only on 05.10.1995, he soughtfor refixing the seniority above his juniors, namely S.Nva John,Durairaj, Arumugam, Viapuri, C.Ramasamy, Subramanian and Alagurajand to give further promotion on par with his juniors. Immediately,after sending his representation, he filed original applicationwithin 10 days before the State Administration Tribunal, beingO.A.No.6279 of 1995. The Tribunal, at the admission stage itself,disposed of the O.A. and issued direction, dated 16.10.1995, askingthe respondent State to consider the case of the petitioner.Pursuant to the direction and after consulting the Chief Office, theState Government issued G.O.3(D) No.386, Home Department, dated26.11.1996, rejecting the case of the petitioner. It is against thisorder, the petitioner moved second round of litigation in presentO.A.No.3756 of 1997. Though the Administrative Tribunal iscircumscribed by Section 21 of the Administrative Tribunal Act, thepetitioner got over limitation by stating that his case was rejectedby the State Government on 26.11.1996 and therefore, he was wellwithin time. The Tribunal accepted the same and ordered notice tothe respondent. The respondents filed a detailed counter affidavit,dated 13.1.1999, setting out circumstances under which others werepromoted. On abolition of the Tribunal, the matter stood transferredto this court and was renumbered as W.P.No.25045 of 2006.3.W.P.No.29686 of 2006: In this case also, the petitionerchallenged the Government order, dated 9.5.1973 in G.O.Ms.No.1258Home Department as well as the subsequent order of rejection by theState Government by G.O.3(D) No.242, dated 27.9.1996. Here also, thepetitioner sent a representation dated 10.01.1996. Thereafter,within one month, he moved Tribunal in O.A.No.659 of 1996. TheTribunal, by an order, dated 5.2.1996, directed the State Governmentto dispose of the representation. Pursuant to the direction, G.O.3(D)No.242, dated 27.09.1996 came to be passed. It is this order,which was challenged by the petitioner in O.A.No.4181 of 1997 beforethe Tribunal. The respondent has also filed a counter affidavit. Onabolition of the Tribunal, the matter stood transferred to thiscourt and renumbered as W.P.No.29686 of 2006. https://hcservices.ecourts.gov.in/hcservices/

4.W.P.No.29689 of 2006: The challenge is to the order, dated9.5.1973 in G.O.Ms.No.1258, Home Department and the rejection by theState Government by G.O.Ms.No.3(D)/15 Home Department, dated5.2.1997. In this case also, the petitioner did not question theoriginal overlooking of seniority, but chose to send arepresentation on 7.9.1995 and thereafter, he moved Tribunal withinone month with O.A.No.7647 of 1995. The Tribunal directed thepetitioner's representation to be disposed of. It is pursuant to thesaid direction, G.O.3(D)No.15, dated 5.2.1997 was passed. Since thepetitioner's claim was negatived, he once again filed O.A.No.4178 of1997. A Counter affidavit was filed by the respondents. On theTribunal being abolished, the said O.A. stood transferred to thiscourt and was renumbered as W.P.No.29689 of 2006. 5.The learned counsel for the petitioners has stated that theapplications are well within limitation, since the impugned ordersare dated 26.11.1996, 27.09.1996 and 05.02.1997 respectively. But,the petitioners' claim for seniority arose in the year 1973 afteradhoc rules were published by the State and that the GovernmentOrder, dated 9.5.1973 is also under challenge. Admittedly, thepetitioners, after getting promoted to the post of Sub Inspector ofPolice, chose to send representations only after a period of 2years, namely on 05.10.1995, 10.01.1996 and 7.9.1995 respectivelyand in order to revive the lost cause of action, they cleverly movedTribunal with O.A.Nos.6279 of 1995, 659 of 1996 and 7647 of 1995 andthe Tribunal has disposed of the O.As. without notice to theGovernment and has given direction to the Government to dispose ofthe representations. It was pursuant to the direction issued by theTribunal, the Government passed detailed orders, which are alsoimpugned in these writ petitions. In this regard, it is necessary torefer the latest decision of the Supreme Court reported in 2008 AIRSCW 7233 (C.JACOB VS. DIRECTOR OF GEOLOGY & MINING & ANR.). Inparagraph 6, the Supreme Court deprecated the practice of revivingthe cause of action by filing a representation and getting theTribunal to dispose of the said representation asking the Authorityto consider the same. It is necessary to refer paragraphs 6,7 and 8of the said judgment, which reads as follows:"6.Let us take the hypothetical case of an employeewho is terminated from service in 1980. He does notchallenge the termination. But nearly two decades later,say in the year 2000, he decides to challenge thetermination. He is aware that any such challenge would berejected at the threshold on the ground of delay (if theapplication is made before Tribunal) or on the ground ofdelay and laches (if a writ petition is filed before aHigh Court). Therefore, instead of challenging thetermination, he gives a representation requesting that hemay be taken back to service. Normally, there will beconsiderable delay in replying such representationsrelating to old matters. Taking advantage of thisposition, the ex-employee files an application/writpetition before the Tribunal/High Court seeking adirection to the employer to consider and dispose of his https://hcservices.ecourts.gov.in/hcservices/ representation. The Tribunals/High Courts routinely allowor dispose of such applications/petitions (many a timeeven without notice to the other side), without examiningthe matter on merits, with a direction to consider anddispose of the representation. The courts/tribunalsproceed on the assumption, that every citizen deserves areply to his representation. Secondly they assume that amere direction to consider and dispose of therepresentation does not involve any 'decision' on rightsand obligations of parties. Little do they realize theconsequences 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'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,may not 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."6.The petitioners, by merely filing O.As. before the Tribunaland getting their 1995 and 1996 representations disposed of, cannot https://hcservices.ecourts.gov.in/hcservices/ revive the cause of action, which arose in the year 1973. In thelight of the above decision, the Tribunal ought not have entertainedthe case of the petitioners. In any event, since the issue has comebefore this court, this Court, even though is not trapped by Section21 of the Administrative Tribunal Act, cannot entertain the writpetitions, if there is delay and laches on the part of theGovernment Servant. In view of the above, these writ petitions standdismissed. However, there shall be no order as to costs. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Secretary to Government, Home Department, Secretariat, Chennai-9.2.The Director General of Police, Admirality House, Madras-2.+ 1 c.c. to Mr. A. Kalaiselvan, Advocate. S.R.No.5901.+ 1 c.c. to The Government Pleader. S.R.No.5780. W.P.NOS.25045, 29686 AND 29689 OF 2006LA (CO)GSK 13.02.2009.